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BJEPORT8 

CASES 

* 

ARGUED  AND  DETERMINED 
IN  THE 

COURT  OF  APPEALS 

MARYLAND, 

In  1826  &  1827. 


BY  THOMAS  HARRIS, 

Clerk  of  the  Court  of  Appeals, 

i         RICHARD^W.  GILL> 
Attorney  at  Law. 

VOLUME  I. 
4MIEN 


ANNAPOLIS: 

PRINTED  BY  JONAS  GREEN. 
1828, 


.     \ 


3PASS.      MITE. 

7 12  For  appeal  read  appear. 

11 20  After  property  insert  a  comma,  and  erase  the  comma  after  JMfldS- 

sity. 

39  For  defendant  read  defendants. 

26 7  For  Aem'ra  read  therein. 

34 20  For  November  read  December. 

-27  For  one?  read  an. 

For  decision  read  sense. 
-1.3  After  Gaunt  erase  the  inverted  commas. 

9  After  estates  insert  te«7. 
-  2  After  «;//«  insert  stated  to  be. 

-26  Insert  the  inverted  commas  after  appear,  and  erase  them  before 
This 

153 22  For  vendee's  read  vendees. 

156 28  For  being  reaH  been. 

176 V   After  £5"c.  insert,  end  should  in  the  meantime  renew  the  said  notes 

at  the  »nd  of  every  60  days,  and  pay  the  regular  interest  or  diS' 
count  upon  the  same,  He. 

11  After  due  erase  the  words  above  directed  to  be  inserted. 

237 12   After  was  insert  an. 

. 23  For  to  reac!  of. 

308 14  After  as  insert  a. 

321 31   For  appellee  read  appellants. 

323 8  For  Flannagan  read  Carman. 

409 24   After  laws  erase  the  inverted  commas. 

413 7  For  evidence  read  evidenced. 

420 9  For  prisoners  read  prisoner. 

442 13  After  running  insert  urc/A. 

468 13   F,rase  and 

14  For  are  read  being       Erase  it. 

470 28  For  drawer's  read  drawee's. 

488 38  After  reported  insert  m. 

492 8  For  become  read  became. 

511 tit.  ASSVMPSIT,  6,  line  4.    After  anrf  insert 


I  NAJVIES  OF  THE  JUDGES,  &c. 

DURING  THE  PERIOD  COMPRISED  IN.  THIS  VOLUME. 


OF  THE  COURT  OF  APPEALS. 
Hon.  JOHN  BUCHANAN,  Chief  Judge. 
Hon     RICHARD  TILGHMAN  EARLE,  Judge. 
Hon    WILLIAM  BOND  MARTIN,         do, 
Hon.  JOHN  STEPHEN,  do. 

Hon.   STETENSON  ARCHER,  do. 

Hon.  THOMAS  BE  ALE  DORSET,          do. 

OF  THE  COURT  OF  CHANCERY. 
Hon.  THEODORICK  BLAND,  Chancellor. 

OF  THE  COUNTY  COURTS. 

FIRST  JUDICIAL  DISTRICT — St.  Mary's,  Charles  and  Prince-George's  Counties. 

Hon.  JOHN  STEPHEN,  Chief  Judge. 
Hon.   EDMUND  KEY,  Associate  Judge. 
Hon.  JOHN  ROUSBY  PLATER,         do. 

SECOND  JUDICIAL  DISTRICT — Cm/,  Kent,  Queen-Anne's  and  Talbot  Counties. 
Hon.  RICHARD  TILGHMAN  EARLE,  Chief  Judge. 
Hon.    LEMUEL  PURNELL,  Associate.  Judge. 
Hon.   ROBERT  WRIGHT,  do. 

Hon.  PHILEMON  B.  HOPPER,  do.  (aj 

THIRD  JUDICIAL  DISTRICT — Calverf,  Jbint-Jlrundd  and  Montgomery  Counties. 
Hon.  THOMAS  BEALE  DORSEY,  Chief  Judge. 
Hon.  CHARLES  J.  KILGOUH,  Associate  Judge. 
Hon.  THOMAS  H.  WILKINSON,  do. 

FOURTH    JUDICIAL  DISTRICT — Caroline,  Dorchester,  Somerset  and  Worcester 

Counties. 

Hon.   WILLIAM  BOND  MARTIN,  Chief  Judge. 
Hon.   JAMES  B   ROBINS,  Associate  Judge. 
Hon.   WILLIAM  WHITTINGTON,         do. 
Hon    AHA  SPENCE,  do.  (~b_) 

Hon.    WILLIAM  TINGLE,  do.  (~cj 

FIFTH  JUDICIAL  DISTRICT — Frederick,  Washington  and  Mlegany  Counties. 
Hon.  JOHN  BUCHANAN,  Chief  Judge. 
Hon.   ABRAHAM  SHRIVEH,  Associate  Judge. 
Hon.  THOMAS  BUCHANAN,  do. 

SIXTH  JUDICIAL  DISTRICT — Baltimore  and  Tlarford  Counties. 
Hon.  STEVENSON  ARCHER,  Chief  Judge. 
Hon.  CHARLES  W.  HANSON,  Associate  Judge. 
Hon.   WILLIAM  H.  WARD,  do. 

OF  BALTIMORE  CITY  COURT. 
Hon.  NICHOLAS  BRTCE,  Chief  Jtulge. 
Hon.  WILLIAM  M'MECHBN,  Associate  Judge. 
Hon.  ALEXANDER  NISBET,  do. 

ATTORNEY  GENERAL. 

TJiomas  Kell,  Esquire. 

(a)  Appointed  the  25th  of  October  1*28,  in  th<-  place  of  Jmlr">  Wright,  deceased. 

(6)  Ap\>oint»-d  on  the  2S.h  o»  October  1826,  to  ft'l  iht  vacancy  <>tvaiioned  by  the  death  of 
•Judp>  Rohlns. 

(c)  Av'-omtrd  on  the  9th  of  March  1327.  to  iill  the  vacancy  occasioned  by  the  death  of 
Imdge  Whittington, 


TABLE 


REPORTED  IN  THIS  VOLU3VIE. 


ft.  B.  The  letter  v  follows  the  name  of  the  appellant  or  plaintiff  in  error, 
and  the  word  and  that  of  the  appellee  or  defendant  in  error. 


Bacon's  Aclm'r.  v  Ferryman,        164 
Baker   &    Middleton   and     Cap- 

peau's  Bail,  154 

Baltimore  Equitable  Society,  &c. 

and  Jolly's  Adm'rs.  295 

Baltzell,  J.  &  C.  v  Foss,  el  al.        504 
Bank  of  Columbia  and  Kaborg,    231 

o  Fitzhugh,      239 

Barron  and  Murphy,  258 

Berry  v  Griffith,  440 

Betts,  et  ux  v  Union  Bank  of  Ma- 
ryland, 275 
Bourne  v  Mackall,  86 
Boyd  and  James,  et  al.  Lessee,         1 
Brickley  &  CaMwell  and  Morris,  107 

Brunner  and  Sauerwr-in,         477 

Buchanan  v  Deshon,  et  al.  280 


PAGE. 

Fergusson,  et  al.  and  Turner,       161 
Fisher  and  Hurtt,  88 

Fitzhugh  and  Bank  of  Columbia,  239 
Flannagan's  Adm'r.  and  M'Elder- 

r\ ,  et  al  308 

Floyd's  Lessee  and  Fenwick,        172 
Forbes  and  Wall,  441 

Foss,  et  al.  and  J.  &  C.  Baltzell,    504 


Giles,  Adm'r.  of  Bacon  v  Ferry- 
man, 164 
Goodwin  and  Cathell,  468 
Gover,  et  al.  Lessee  v  Cooley,  7 
Gray  and  Oliver,  204 
Griffith  and  Berry,  440 

—  ct  al.  and  NcWtOn,  et  al.  Ill 


Caldwell  &  Brickley  and  Morris,  107 
Cappeau's  Bail  v  Middleton  &,  Ba- 
ker, 154 
Cathell  v  Goodwin,  468 
Conner  and  Drtiry,  220 
Cooley  and  Gover,  et  al.  Lessee,  7 


Darnall's  Ex'rs.  v  Magrudcr,  439 
DashielPs  Adm'r.  and  M'Cullob,    96 

Deshon,  et  al.  and  Buchanan,  280 

Dillon  and  Williamson,  444 

Drury  v  Conner,  220 
Duvall,    et  ux.  v  Harwood's 

Adm'rs.  474 


Harwood's  Adm'rs.  and  Duvall,  et 

ux.  474 

Higdon,  et  ux.  v  Thomas,  139 

Hurtt  v  Fisher,  88 


James,  et  al.  Lessee  v  Bovd,  I 

Jenkins,  et  al.  andi.  &.  P.  Turner,  161 
Jolly's  Adm'rs.  v  Baltimore  Equi- 
table Society,  Sec.  295 


Leadenham's  Ex'r.  v  Nicholson, 

etal.  267 

P  Itt 

Fenwick  v  Floyd's  Lessee,          172    M'Culloh  »  DashieU's  Adm'r,        96 


Vlll. 


CASES    REPORTED. 


PAGE. 

M'Elderrv,  et  al.  v  Flannagan's 

Adm'r.  308 

Mackall  and  Bourne,  86 

M'Neal  &  Taylor  v  Phelps,  492 

Magriider  and  Darnall's  Ex'rs.  439 
Marks  and  .Sanderson's  Ex'rs.  252 
Middle-ton  &  Baker  anof  Cappeau's 

Bail,  154 

Morris  v  Brickley  &  Caldvvell,  107 
Murdock  »  Winter's  Adm'r.  471 
Murphy  v  Barren,  258 


Newton,  et  al.  v  Griffith,  et  al.       Ill 
Nicholson,  el  al.  and  Leadenham's 

Ex'r.  267 


Oliver  v  Gray,  204 

Owings's  Ex'rs.  v  O wings,  484 


s 


Sanderson's  Ex'rs.  »  Marks,          252 
Sauerwein  v  Brunner,  477 

Sevirell  v  Sewell's  Adm'r.  9 

State,  (The)  "«e  of  Polk  and  Ro- 
bins, et  al.  4>76(~note.J 


Taylor  &  M'Neal  v  Phelps,  492 

Thomas  and  Higdon,  et  ux.  139 

— 's  Lessee  v  Turvey,  435 

Turner,  J.  &  P.  v  Jenkins,  et  al.  161 
Turvey  and  Thomas's  Lessee,      435 


Union   Bank    of   Maryland    and 

Belts,  et  ux.  175 
v  Ridgely,                324 


Ferryman  and  Bacon's  Adm'r.  164 
Phelps  and  Taylor  &  M'Neal,  492 
Polk  and  Robins,  et  al.  476Cnote.J 


Raborg  v  Bank  of  Columbia,         231 

Ridgely  and  Union  Bank  of  Mary- 
land, 324 

Ringgold,  S.  &  T.  v  M.  Ringgold, 

et  al.  11 

Robins,  et  al.  v  The  State,  use  of 

Polk,  476fno/e.J> 


Vandersmith  v  Washmein's  Adm'r.  4 

w 

Wall  v  Forbes,  441. 

Washmein's  Adm'r.  and  Vander- 
smith, 4 

Williams,  et  al.  and  Leadenham's 

Ex'r.  267 

Williamson  v  Dillon,  444 

Winter's  Adm'r.  and  Murdock,    471 


CASES 

ARGUED  AND  DETERMINED 


IN    THE 


OP 

MARYLAND. 

JAMES,  et  al.  Lessee,  vs.  BOYD. — June  Term,  1820. 

The  lessor  of  the  plaintiff  in  ejectment  died  pending  the  action,  and  lite 
heirs  at  law  were  made  parties  in  his  place,  without  objection,  and  the 
cause  continued  several  terms,  and  the  plots  amended — Held,  that  it  was 
not  competent  for  the  defendant  to  defeat  the  action  by  giving  evidence 
•  that  one  of  the  heirs  was  an  infant  when  she  was  made  a  party;  and  that 
evidence  that  she  was  an  infant  at  the  time  of  the  trial,  would  not  enti- 
tle the  defendant  to  a  verdict  against  the  other  heirs  vho  were  of  full 
age. 

APPEAL  from  Ilarford  County  Court.  Ejectment  on  the 
demise  of  Isaac  Henry,  for  a  tract  of  land  called  Pleasant 
Plains.  Thfi  ilnfondant,  (the  appellee,)  took  defence,  on  war- 
rant, and  plots  were  returned.  The  death  of  Isaac  Henry, 
the  lessor  of  the  plaintiff,  was  suggested;  and  Sedwick  James, 
Junr.  and  Elizabeth  his  wife,  John  Litton  Henry,  Samuel 
Henry,  Robert  Henry  and  Mary  Henry,  claiming  to  be  heirs 
at  law  and  representatives  of  the  said  Isaac  Henry,  the  lessor 
of  the  plaintiff,  upon  their  prayer,  were,  by  order  of  the  court, 
admitted  in  the  place  and  stead  of  said  Isaac  Henry,  lessor  as 
aforesaid,  &c. 

At  the  trial  the  defendant  gave  in  evidence,  that  Mary  Hen- 
ry, one  of  the  lessors  of  the  plaintiff  was,  at  the  time  she  was 
made  a  party  in  the  cause,  an  infant  and  under  age;  and  there- 
upon prayed  the  court  to  direct  the  jury  to  find  a  verdict  for 
the  defendant.  Which  direction  the  Court,  [Hanson  and 
Ward,  A.  J.]  thereupon  gave.  The  plaintiff  excepledj  and 
VOL.  j.  1 


£  CASES    IN   THE    COURT   OF    APPEALS 

JAMES  v.  BOTD. — 1826. 

the  verdict  and  judgment  being  against  him,   he  appealed  to 
this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE. 
and  DORSET,  J. 

C.  S.  W.  Dorsey  and  Gill,  for  the  Appellant,  contended — 
1.  That  under  the  act  of  assembly  of  1785,  ch.  80,  s.  2,  it  is 
the  duty  of  the  court,  in  an  action  of  ejectment,  where  a  new 
party  is  made  under  a  suggestion  of  death,  if  such  new  party- 
be  proved  to  be  an  infant,  to  continue  such  action,  unless  the 
defendant  require  the  same  to  be  abated. 

2.  That  the  second  section  of  the  above  act  does  not  apply 
to  this  case;  and  therefore  the  court  below  erred  in  the  instruc- 
tion given  to  the  jury. 

3.  That  the  new  parties  were  properly  made  under  the  first 
section  of  the  above  act. 

4.  That  if  a  party,  when  appearing  to  an  action  of  ejectment 
under  this  act,  be  an  infant;  yet  if  it  does  not  appear  that  he 
was  an  infant  when  the  jury  was  sworn,  the  court  have  no 
right  either  to  continue  or  abate  the  suit  under  the  second  sec- 
tion of  that  law. 

On  the  first  point,  they  cited  1  Bac.  M.  tit.  Abatement,  IS. 
Thurstout  vs.  Grey,  2  Stra.  1056.  Kinney  vs.  Beverly,  1 
Hen.  4*  Munf.  531.  Howard  vs.  Moale,  et  al.  Lessee,  2  Harr. 
4'  Johns.  249,  280,  per  Nicholson,  J.  2  Sellon's  Pr.  1 36. 

On  the  second  point — Zouch  vs.  Parsons,  3  Burr.  1806. 
Runn.  Eject.  188.  3  Com.  Dig. 54S,  (New  Ed.)  Anonymous, 
1  Wils.  130.  Noke  vs.  Wind  ham,  1  Stra.  694.  Throgmor- 
ton  vs.  Smith,  2  Stra.  932.  Anonymous,  1  Cowp.  128. 

On  the  third  point — Shivers  vs.  Wilson,  5  Harr.  4«  Johns. 
130. 

On  the  fourth  point — 3  Com.  Dig.  551.  Foxurstvs.  Tre- 
maine,  3  Saund.  213. 

Speed,  for  the  Appellee  cited  Co.  Litt.  135,  b.  (note  1.) 
Stat.  West  1.  The  act  of  1785,  ch.  80.  Motteux  vs.  St  Au- 
bin,  2  W.  Blk.  1133.  Pechey  vs.  Harrison,  1  Ld.  Raym. 
and  the  act  of  1801,  ch.  74,  s.  38. 


OF   MARYLAND. 


JAMES  v.  BOYD. — 1826. 


The  opinion  of  the  Court  was  delivered  by 

EARLE,  J.  Isaac  Henry,  the  lessor  of  the  plaintiff  in  this 
case,  died  pending  the  action,  and  his  heirs  at  law  were  made 
parties  in  his  place,  without  objection  on  the  part  of  the  de- 
fendant. The  cause  was  continued  for  several  terms  after,  and 
the  plots  filed  therein  underwent  alterations  and  amendments. 
At  the  trial  the  defendant,  by  a  witness,  proved,  that  Mary 
Henry,  one  of  the  heirs,  at  the  time  she  was  made  a  party, 
was  an  infant  and  under  age;  and  by  his  counsel  he  then  mov- 
ed the  court  to  direct  the  jury  to  find  a  verdict  for  him;  which 
direction  the  court  accordingly  gave.  This  direction  is  now 
complained  of,  and  there  does  not  rest,  on  our  minds,  a  particle 
of  doubt,  that  it  was  erroneous.  To  arrive  at  this  conclusion 
it  is  not  necessary  to  examine  the  question  so  much  pressed  on 
the  argument,  whether  at  common  law  an  ejectment  abates  by 
the  death  of  the  lessor  of  the  plaintiff;  nor  need  we  enquire 
whether  an  infant  lessor  must  prosecute  an  ejectment  by  attor- 
ney, or  next  friend;  it  is  enough  for  us  to  know,  that  the  testi- 
mony of  the  defendant  had  no  bearing  upon  the  issue  joined 
between  the  parties,  was  calculated  to  operate  a  complete  sur- 
prise upon  the  plaintiff,  and  did  not  answer  the  purpose  for 
which  it  was  introduced;  that  is  to  say,  did  not  prove  the  suit 
prosecuted  by  a  party  who  was  incompetent,  from  nonage,  to 
prosecute  it.  Whatever  Mary  Henry'' s  age  might  have  been 
when  she  was  made  a  party  to  the  suit,  it  is  not  established  by 
evidence,  that  she  was  an  infant  at  the  time  of  the  trial.  As 
her  age,  when  she  appeared  as  one  of  the  heirs  of  her  ancestor, 
is  unascertained,  it  is  as  fair  to  conclude,  that  she  arrived  at  lull 
age  before  the  trial,  as  that  she  remained  a  minor  until  that  pe- 
riod. But  if  it  was  conceded,  that  Mary  Henry  was  an  in- 
fant at  the  time  of  the  trial,  ought  the  court,  for  that  reason,  to 
have  directed  the  jury  to  find  for  the  defendant,  not  only 
against  such  infant,  but  against  the  other  new  lessors  of  the 
plaintiff  who  were  of  full  age?  The  court  are  acquainted  with 
no  principle  of  law  to  sanction  such  a  decision,  and  therefore 
must  reverse  the  judgment. 

JUDGMENT  REVERSED;  A5D  PROCEDENDO  AWABDEP. 


41  CASES    IN    THE    COURT    OP   APPEALS 

VANDERSMITH  v.  WASHMEIN'S  Adm'r. — 1826. 

VANDERSMITH  vs.  WASHMEIN'S  Adm'r. — June,  1826. 

After  verdict  in  an  action  of  assumpsit,  by  an  administrator,  a  defective 
allegation  in  the  declaration,  of  the  promise  to  the  administrator,  and 
the  death  of  the  intestate,  and  an  omission  to  make  profert  of  the  letters 
of  administration,  cannot  be  taken  advantage  of,  though  they  might 
have  furnished  good  causes  of  demurrer. 

>V,  being  taken  sick  at  the  house  of  V,  deposited  in  his  hands  an  amount 
of  money,  and  directed  V  to  send  for  a  physician,  to  furnish  him  with 
every  thing  that  was  necessary,  and  to  apply  the  money  to  the  payment 
of  the  physician's  bill,  and  of  any  expenses  which  might  be  incurred 
on  his  account  during  his  sickness.  V  did  send  for  a  physician,  and 
furnished  W  with  every  necessary  and  attendance  during  his  sickness, 
\vhich  in  a  few  days  ended  fatally.  On  his  death  V  paid  for  all  the  ex- 
penses, including  the  physician's  bill.  In  an  action  of  assumpsit  brought 
against  him  by  W's  administrator,  to  recover  the  amount  of  the  deposit. 
Held,  that  V  was  to  be  allowed  for  the  amount  paid  the  physician,  if  it 
was  such  as  he  was  entitled  to  receive,  as  well  as  the  other  expenses. 
That  the  fund  placed  in  his  hands  by  W,  was  to  be  considered  as  a  spe- 
cial fund,  and  that  in  relation  to  it  he  was  to  be  looked  upon  as  a  trustee, 
or  agent,  of  the  physician,  for  whose  remuneration  it  was  in  part  creat- 
ed; but  that  it  would  have  been  otherwise  if  V  had  received  the  deposit 
for  safe-keeping  only. 

APPEAL  from  Baltimore  County  Court.  Action  of  As- 
sumpsit foi  money  paid,  laid  out  and  expended;  had  and  re- 
ceived; lent  and  advanced;  and  on  an  insimul  compulassent. 
Non  assumpsit  pleaded,  and  issue  joined.  At  the  trial  the 
plaintiff,  (no  w  appellee, )  offered  evidence,  that  the  deceased,  upon 
getting  to  the  house  of  the  defendant,  (the  appellant,)  was  taken. 

ill,  and  there  delivered  to  the  defendant  the  sum  $149  50,  to  he 

taken  care  ot  for  him,  the  deceased.  The  defendant  then  offered 
evidence,  by  Peter  Fandersmith,  Dr.  Marsh,  and  Benjamin 
Richardson,  that  the  deceased  arrived  at  the  house  of  the  de- 
fendant, and  was  taken  very  ill;  that  in  about  two  or  three 
hours  afterwards,  he  told  the  defendant  that  he  wished  him  to 
send  for  a  physician,  and  to  furnish  him  with  every  thing  that 
was  necessary,  and  to  apply  the  cash  delivered  to  him,  the  de- 
fendant, in  payment  of  the  physician's  bill,  and  to  the  dis- 
charge of  any  expenses  that  might  be  incurred.  That  the  de- 
fendant accordingly  sent  for  a  physician,  and  also  went  after- 
wards personally  for  him.  That  the  physician  attended  the 
deceased  during  his  illness,  which  lasted  from  Thursday  until 
Saturday,  when  he  died.  That  during  the  whole  time,  he  was 


OF   MARYLAND. 


VANDERSMITH  v.   WASHMEIN'S  Adm'r. — 1826. 


furnished  with  every  necessary  and  attendance.  That  the  de- 
fendant immediately  after  paid  the  physician's  bill,  amounting 
to  $50,  together  with  all  funeral  expenses,  and  other  expenses 
attending  the  illness  of  the  deceased,  or  in  consequence  of  his 
death,  and  kept  his  horses,  wagon,  and  other  property,  until 
about  eleven  days  afterwards,  when  they  were  delivered  to  the 
piesent  plaintiff.  That  the  expenses  so  incurred,  and  which 
were  reasonable,  were  paid  between  the  31st  of  August,  on 
which  day  the  intestate  died,  and  the  5th  of  September  1822, 
and  that  administration  was  obtained  on  the  17th  of  June  1823. 
The  plaintiff  then  prayed  the  court  to  direct  the  jury,  that 
upon  the  evidence  so  offered  he  was  entitled  to  recover  the 
amount  of  his  claim.  Which  opinion  the  Court,  [Hanson  and 
Ward,  A.  J.  (a)]  refused  to  give;  but  directed  the  jury,  that 
the  plaintiff  was  entitled  to  recover  the  amount  of  the  money 
so  deposited,  after  deducting  therefrom  such  sum  as  they  should 
think  a  reasonable  compensation  to  the  defendant  for  his  at- 
tendance and  care,  and  board  ot  the  deceased,  and  the  feed  of 
the  horses,  during  the  time  of  the  illness  of  the  deceased,  and 
his  funeral  expenses,  but  not  the  physician's  bill,  or  any  other 
expenses.  The  defendant  excepted;  and  the  verdict  and  judg- 
ment being  against  him,  he  appealed  to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
STEPHEN,  and  DORSET,  J. 

R.  B.  Magruder,  for  the  Appellant,  contended — 1  That 
the  physician's  bill  was  not  a  mere  honorarium,  but  was  re- 
coverable, and  therefore  ought  to  have  been  allowed  to  be  set 
off  by  the  defendant  below. 

2.  That  the  money  put  in  the  hands  of  the  defendant  below, 
by  the  appellee's  intestate,  was  a  special  deposit  for  the  use  of 
the  physician.      1  Com.  on  Cont.  49,  56.     2  Com.  on  Cont. 
7,26.    Temple  vs.  Welds,  10  Mod.  315.  Dowson  vs.  Scriven, 
1  H.  Elk.  218. 

3.  That  the  declaration  was  defective  in  not  setting  out  pro- 
perly the  promise  to  the  administrator,  nor  the  death  of  the  in- 
testate, and  in  not  making  profert  of  the  letters  of  administra- 
tion. 

fa}  Archer,  Ch.  J.  dissented. 


<?  CASES    IN    THE    COURT    OF    APPEALS 

VANDEKSMITH  v  WASHMEIN'S  Aclm'r. — 1826 

Meredith,  for  the  Appellee.  To  show  that  it  was  too  late  to 
take  advantage  of  the  alleged  defect  in  the  declaration,  he  cited 
1  C kitty's  Plead.  401.  He  also  contended,  that  the  deceased 
constituted  the  appellant  his  agent,  but  that  agency  was  revoked 
by  his  death;  and  the  appellant  had,  consequently,  no  right  to 
pay  the  physician's  bill  after  the  death.  There  is  no  settled 
law  that  a  physician's  bill  for  advice  is  to  be  paid.  The  pro- 
mise in  the  declaration  is  laid  to  the  intestate. 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  Court. 
The  objections  attempted  to  be  taken  to  the  declaration,  that 
the  promise  to  the  administrator,  and  death  of  the  intestate, 
are  defectively  set  out,  and  that  there  is  no  profert  of  the  let- 
ters of  administration,  though  they  might  have  furnished  good 
causes  of  demurrer,  come  too  late  now,  after  verdict,  and  the 
case  must  be  decided  on  the  bill  of  exceptions  taken  at  the 
trial.  On  which  the  only  question  raised  is,  whether  the  ap- 
pellant was  entitled  to  retain  any  thing  on  account  of  the  phy- 
sician's bill? 

If  the  money,  which  was  placed  by  the  intestate,  Frederick 
Washmein,  in  the  hands  of  the  appellant,  was  deposited  with 
him  for  sale  keeping  only,  and  for  no  other  purpose,  he  then 
would  have  had  no  right  to  pay  any  part  of  it  over  in  discharge 
of  the  physician's  bill.  But  the  evidence  is,  that  the  deceased 
directed  the  appellant  to  send  for  a  physician,  to  furnish  him 
with  every  thing  that  was  necessary,  and  to  apply  the  money 
placed  in  his  hands  to  the  payment  of  the  physician's  bill,  and 
in  discharge  of  any  expenses  that  might  be  incurred.  Now, 
il  the  meaning  of  the  deceased  was,  that  in  the  event  of  his 
death,  the  appellant  should  pay  the  attending  physician  out  of 
the  money  so  placed  in  his  hands,  and  that  formed  one  of  the 
purposes  for  which  it  was  lodged  with  him,  (which  would 
seem  to  have  been  the  case,  for  it  is  difficult  to  suppose,  that 
he  intended,  in  the  event  of  his  recovery,  that  the  appellant 
should  be  his  paymaster,)  then  it  was  a  special  fund,  only  to 
be  brought  into  action  after  the  death  of  the  intestate;  and  the 
appellant  may  be  considered  in  the  light  of  a  trustee,  or  agent, 
of  the  physician,  for  whose  remuneration  the  fund  was  in  part 
created,  and  was  warranted  in  paying  his  bill,  if  indeed  the 


OF   MARYLAND. 


COVER  v.   CooLEr. — 1826. 


amount  was  such  as  he  was  entitled  to  receive.  We  think, 
therefore,  that  the  court  below  erred  in  directing  the  jury,  that 
the  appellant  was  entitled  to  no  deduction  from  the  amount 
claimed  in  the  action,  on  account  of  the  physician's  bill. 

JUDGMENT    REVERSED. 


GOVER,  et  al.  Lessee,  vs.  COOLEY. — June,  182G. 

In  an  action  of  ejectment,  the  plaintiff  obtained  judgment  against  the  ca.su- 
ml  ejector,  and  possession  by  writ,  under  such  judgment.  At  the  second 
term  thereafter,  the  landlord  of  one  of  the  tenants  in  possession,  moved 
the  court  to  set  aside  the  judgment,  &c.  A  rule  was  granted;  and  at 
the  next  term,  the  county  cou*t  set  aside  the  judgment,  awarded  resti- 
tution as  prayed,  permitted  the  landlord  to  appeal,  and  ordered  the  ac- 
tion to  be  reinstated  on  the  docket,  and  regular  continuances  entered 
therein.  At  this  stage  of  the  proceedings,  the  plaintiff  moved  the  court 
for  a  reconsideration,  and  to  set  aside  the  order  for  restitution,  as  unduly 
obtained.  This  being  refused,  the  plaintiff  appealed — Held,  that  the 
setting  aside  a  judgment  against  the  casual  ejector,  on  the  motion  of  the 
landlord  of  the  tenant  in  possession,  awarding  restitution  of  the  pre- 
mises, and  ordering  the  action  to  be  tried,  is  but  an  interlocutory  pro- 
ceeding, from  which  an  appeal  will  not  lie;  and  the  refusal  of  the  coun- 
ty court  to  reconsider  such  proceedings,  does  not  alter  the  case. 

APPEAL  from  Harford  County  Court.  Ejectment  for  a  tract 
of  land  called  Rupalta,  brought  on  the  18th  of  August  1823. 
Copies  of  the  declaration  and  notice  were  directed  to,  and  serv- 
ed on,  Abraham  Jarrett,  Thomas  Brown  and  William 
Russell,  as  tenants  in  possession  of  the  premises,  or  of  some 
part  thereof,  to  March  term  1824,  the  copies  which  were  di- 
rected to  be  served  to  August  term  1823,  having  been  return- 
ed Tarde.  At  an  adjournment  of  March  term  1824,  viz.  on 
the  12th  of  June  1824,  on  motion  of  the  plaintiff,  a  judgment 
nisi  for  possession,  &c.  was  entered  against  the  casual  ejector — 
the  tenants,  although  called  for  that  purpose,  not  appearing,  &c. 
Writ  of  possession  issued  on  the  12th  of  June  1824,  and  re- 
turned by  the  sheriff  to  August  1824,  "possession  delivered 
the  14th  of  June  1824."  At  March  term  1825,  a  motion  was 
made  to  the  court  by  Daniel  M.  Cooley,  (the  appellee,)  and 
William  Russell,  to  strike  out  the  judgment  rendered  by  de- 
fault, and  to  permit  Cooley,  the  landlord  of  Russell,  to  appear 
defend  the  action,  and  to  award  a  writ  of  restitution.  This 


8  CASES   IN   THE   COURT   OF   APPEALS 

GOVEB  v.  COOLET. — 1826. 

motion  was  accompanied  with  sundry  affidavits.  A  rule  was 
made  on  the  plaintiff  to  show  cause,  during  the  next  term,  why 
the  judgment  should  not  be  set  aside,  and  Cooley  be  admitted 
to  appear  and  defend  the  action.  At  August  term  1825,  the 
plaintiff  filed  certain  affidavits;  and  the  court  ordered  that  the 
judgment  rendered  against  the  casual  ejector  be  stricken  out, 
and  that  the  writ  of  possession,  issued  thereon,  be  set  aside. 
The  court  further  ordered,  that  a  writ  of  restitution  be  issued 
to  give  possession  to  Cooley  of  all  that  part  of  the  land  and  pre- 
mises mentioned  in  the  declaration,  which  was  in  the  month  of 
October  1823,  in  the  possession  and  occupation  of  Russell,  and 
which  is  commonly  called  Cooler's  Fishery;  that  the  clerk 
continue  the  action  from  June  1824  until  the  then  term,  by  re- 
gular continuances;  and  that  Cooley  be  admitted  to  defend  the 
action  on  the  usual  terms.  Cooley  then  appeared  by  his  attor- 
ney, and  entered  into  the  common  rule,  with  leave  to  ascertain 
his  defence;  and  the  plaintiff  filed  a  new  declaration  against 
him,  in  the  usual  manner,  and  Cooley  took  defence  on  warrant, 
and  pleaded  not  guilty,  to  which  issue  was  joined,  (a).  At  the 
same  term,  (August  1825,)  the  plaintiff  filed  additional  affida- 
vits, and  moved  the  court  to  reconsider  the  motion  on  the  part 
of  the  defendant,  and  to  set  aside  the  order  for  a  writ  of  resti- 
tution, as  unduly  and  unfairly  obtained,  without  apprizing  the 
court  of  the  death  of  Russell,  and  of  the  sale  of  the  interest  of 
Cooley  in  the  premises  mentioned,  before  the  said  motion  was 
made  in  his  behalf  as  landlord  thereof.  The  court  overruled 
the  motion  made  by  the  plaintiff;  and  he  appealed  to  this  court. 

Motion  by  the  appellee  to  dismiss  the  appeal. 
This  motion  was  argued   before  BUCHANAN,  Ch.   J.    and 
EARLE,  MARTIN,  and  STEPHEN,  J. 

Gill,  for  the  motion,  contended,  that  the  judgment  appealed 
from  was  not  final — it  was  merely  interlocutory.  The  court 
below  have  set  aside  a  judgment  by  default  in  an  action  of 
ejectment,  and  ordered  the  case  to  stand  continued — new  par- 
ties to  be  made;  and  the  new  parties  have  appeared.  This  au- 
thority is  derived,  as  well  from  the  nature  of  the  action,  as  the 

faj  The  filing  the  new  declaration,  the  plea,  and  joining  in  issue,  the 
pities  admitted  to  be  a  mistake  in  making  the  record. 


OP  MARYLAND. 


SEWELL  v.   SEWELL'S   Adm'r. — 1826. 


act  of  assembly.  Nov.  1787,  ch.  9,  s.  6.  Spurrier  vs.  Yield- 
hall,  2  Harr.  #  M'Hen.  173.  The  judgment  does  not  profess 
to  settle  the  case  finally.  It  places  the  parties  in  statu  quo. 
Interlocutory  judgments  at  law  cannot  be  appealed  from. 
Wilner  vs.  Harris,  5  Harr.  4*  Johns.  7.  Here  no  right  has 
been  finally  decided.  The  refusal  of  the  court  to  strike  out  a 
judgment  by  default,  and  suffer  the  defendant  to  plead,  is  not  a 
subject  of  appeal,  and  cannot  be  revised  by  this  court.  Jack- 
son vs.  Union  Bank,  G  Harr.  <§*  Johns.  151,  (note.)  It  is 
the  policy  of  the  law  to  postpone  appeals  from  inferior  courts 
until  final  judgment;  for  all  errors  in  the  decisions  and  judg- 
ments of  such  courts,  being  part  of  the  record,  may  be  corrected 
in  the  court  of  last  resort.  The  motion  below  having  been  sus- 
tained upon  affidavits,  which  are  a  part  of  the  record,  this  court 
have  the  means,  if  they  look  into  the  merits,  of  ascertaining 
whether  it  was  correctly  granted. 

Mitchell,  against  the  motion,  cited  Jackson  vs.  Babcock,  17 
Johns.  Rep.  112.  2  Sellon's  Pr.  107.  Adams  on  Eject.  239. 
Doe  vs.  Roe,  3  Taunt.  506.  Doe  vs.  Davies,  8  Scrg.  $•  Low. 
37.  2  Harr.  Ent.  46,  47. 

APPEAL  DISMISSED. 


SEWELL  vs.   SEWELL'S  Adm'r.  D.   13.   N. — June,   1826. 

i'iie  orphans  court,  at  July  term  1824,  on  the  petition  of  J.  S,  ordered  the 
register  to  grant  him  letters  of  administration  on  the  estate  of  K  S, 
on  his  giving  bond,  with  security.  On  the  15th  of  September  1824,  in 
the  recess  of  the  court,  letters  were  accordingly  granted.  On  the  14th 
of  September,  still  in  the  recess  of  the  court,  W  S,  the  only  surviving 
brother  of  the  deceased,  by  his  petition,  objected  to  letters  being  so 
granted,  excepted  to  such  appointment,  and  prayed  an  appeal,  which 
was  granted  by  the  court  on  the  13th  of  October,  182-1.  The  court  of 
appeals  dismissed  the  appeal. 

By  the  act  of  1818,  ch.  204,  appeals  from  the  orders  and  decisions  of  the 
orphans  courts,  must  be  taken  within  thirty  days  after  such  order  or 
decision. 

APPEAL  from  the  Orphans  Court  of  Calvcrt  County.     At 
July  term  1824,  the  appellee   petitioned   the  orphans  court  to 
grant  him  letters  of  administration  cle  bonis  new,  on  the  estate 
VOL.  i.  2 


10        CASES  IN  THE  COURT  OF  APPEALS 

SEWELL  v.   SEWELL'S  Adm'r. — 1826. 

of  John  R.  Sewell,  deceased,  inasmuch  as  he  was  appointed 
originally  co-executor  with  the  late  Thomas  Reynolds,  and 
resigned  only  in  favour  of  the  said  Reynolds,  who  is  since 
dead.  He  exhibited  the  will  of  John  R.  Sewell,  dated  the 
13th  of  November  1819,  whereby  he  appointed  his  brother's 
son,  James  J.  Sewell,  (the  appellee,)  with  Thomas  Reynolds, 
to  be  his  executors.  The  will  was  duly  proved  on  the  20th  oi 
January  1821,  by  the  subscribing  witnesses;  and  on  the  23d  oi 
January  1821,  James  J.  Sewell,  one  of  the  executors  named, 
refused  to  administer,  and  by  his  written  communication  re- 
nounced all  right,  &c.  The  orphans  court  ordered  the  regis- 
ter to  grant  letters  of  administration  de  bonis  non,  with  the 
•will  annexed,  to  James  J.  Sewell  (the  appellee)  on  his  giving 
bond  with  security;  and  on  the  13th  of  September  1824  letters 
were,  in  the  recess  of  the  court,  accordingly  granted.  On  the 
14th  of  September  1824,  in  the  recess  of  the  court,  William 
JR.  Sewell)  (the  appellant,)  the  only  surviving  brother  of  the 
deceased,  by  his  petition  objected  to  letters  being  so  granted., 
alleging  that  John  R.  Sewell,  deceased,  by  his  will,  appointed 
James  J.  Sewell  and  Thomas  Reynolds  his  executors;  that 
James  J.  Sewell  resigned  his  exe tutorship,  and  letters  were 
granted  to  the  said  Reynolds,  who  is  since  dead;  and  that  the 
petitioner  is  the  right  and  lawful  person  to  whom  letters  of  ad- 
ministration de  bonis  non  ought  to  be  granted,  as  being  the  only 
surviving  brother  of  John  R.  Sewell,  deceased,  and  he  ex- 
cepted,  and  prayed  an  appeal  to  this  court;  which  appeal  was 
granted  by  the  court  on  the  18th  of  October  1824,  and  the  re- 
cord transmitted  accordingly. 

Motion,  by  the  appellee,  to  dismiss  the  appeal. 
This  motion  was  argued  before  BUCHANAN,   Ch.    J.   and 
EAKLE,  MARTIN,  STEPHEN,  ARCHER,  and  DORSEY,  J. 

C.  Dorsey,  for  the  Appellee,  contended,  that  the  appeal 
must  be  dismissed.  He  referred  to  the  acts  of  1798,  ch.  101, 
sub  ch.  2,  s.  11;  sub  ch.  15,  s.  18;  and  1818,  ch.  204.  He 
said,  that  if  the  appeal  could  be  sustained  in  a  case  like  this,  it 
had  not  been  made  within  the  time  prescribed  by  law. 

Taney  and  Boyle,  against  the  motion. 

APPEAL   DISMISS-ED. 


OF  MARYLAND.  11 


RIXGGOLD  r.   RIMOOOLD. — 1826. 


S.    &   T.    RlNGGOLD   VS.    M.    RlNGGOLD,    et   Cll. 

M.  RJNGGOLD,  et  al.  vs.  S.  &  T.  RINGGOLD.— June  1826. 

Trustees  empowered  by  deed  to  sell  real  estate,  and  with  the  proceeds  pay 
debts  and  make  investments  in  stock,  are  not  authorised  to  exchange 
the  trust  property  for  other  real  property.  By  making  such  exchange, 
though  with  the  best  intentions,  they  are  responsible  for  the  full  value 
of  the  property  parted  with. 

The  policy  of  the  law  requires,  that  the  relation  of  trustee,  and  cestui  que 
trust,  should  be  guarded  with  vigilance,  and  contracts  between  them 
scrutinized,  that  no  injustice  should  be  done  the  cestui  que  trust. 

Where  a  ceslui  que  trust  has  undertaken  to  indemnify  his  trustee,  a  court  of 
equity  ought  to  be  satisfied  that  he  was  free  to  act,  as  a  rational,  intelli- 
gent man,  not  governed  by  considerations  growing  out  of  a  dependant 
condition;  otherwise  the  indemnities  will  be  disregarded. 

\Vhereatrusteedisposes  of  the  title  to  lands,  in  violation  of  his  duty, 
and  the  court  has  no  other  possible  means  of  reinstating  the  cestui  que 
trust,  the  trustee  is  responsible  for  the  utmost  value  of  the  property  dis- 
posed of;  yet  when  the  value  of  the  property  can  be  clearly  ascertained, 
that  must  be  the  measure  of  the  indemnity. 

In  the  case  of  a  mixture  or  confusion  of  property  from  necessity,  the  full 
value  is  given  to  the  innocent  party. 

A  sale  by  one  trustee  to  his  co-trustee,  is  illegal. 

Where  it  was  the  duty  of  trustees  to  collect  purchase  money,  and  invest  it, 
some  of  the  trust  estate  being  sold  to  T,  a  co-trustee,  and  S,  another 
trustee,  made  no  effort,  at  any  period  during  the  existence  of  the  trust, 
to  oblige  his  co-trustee  to  pay  for  his  purchase,  but  suffered  it  to  lie  in 
the  hands  of  T,  when  he,  S,  knew,  that  the  trust  was  abused,  in  conse- 
quence of  a  failure  on  T's  part  to  apply  the  amount  of  the  purchase  mo- 
ney according  to  the  trust,  they  are  both  responsible. 

"Where  S  and  T  sold  personal  property,  with  the  assent  of  its  owner,  took 
bonds  from  the  purchasers  in  their  own  names,  collected  a  part  of  the 
purchase  money,  proffered  themselves  ready  to  account  for  such  sales, 
made  a  return  thereof  as  trustees,  a  court  of  equity  will  infer  some  con- 
ventional arrangement  between  the  parties,  in  the  nature  of  a  trust, 
which  may  be  enforced  in  that  court. 

A  court  of  equity  must  always  decree  upon  the  allegations  in  the  bill  of 
the  complainant,  and  it  is  not  justified  in  going  beyond  them.  As 
where  he  relies  upon  trusts  in  certain  deeds,  and  complains  of  a  viola- 
tion of  tho.'.e  alone,  though  the  facts  admitted  by  the  defendant  dis- 
close the  existence  of  other  trusts,  for  which  they  are  responsible  to 
the  complainant;  yet  that  court  cannot  decree  for  such  other  rights — 
they  must  be  reserved  for  future  consideiation.  In  order,  however,  to 
do  justice  between  the  parties,  where  the  trustees  were  bound  to  pay 
debts,  the  court  will  infer,  in  the  absence  of  express  proof,  that  the 
debts  paid  by  them,  after  the  receipt  of  money  from  the  trusts  not 
charged  in  the  bill,  were  in  fact  paid  out  of  such  receipts. 

AVhere  one  trustee  purchases  a  part  of  the  trust  estate,  for  which  he  was  to 


12        CASES  IN  THE  COURT  OF  APPEALS 

RlNGGOtD  V.  RlNOGOLD. 1826. 

pay  at  a  stipulated  period,  and  his  co-trustee,  under  the  circumstances, 
being  jointly  responsible  with  him  for  the  principal,  there  is,  of  course, 
a  joint  responsibility  for  the  interest. 

Co-trustees  are  bound  to  know  the  receipts,  and  watch  over  the  conduct  of 
each  other.  Where  one  trustee  received  trust  funds  applicable  to  out- 
standing debts  which  he  did  not  pay;  nor  did  he  keep  such  funds  sepa- 
rated from  the  mass  of  his  estate,  a  co-trustee,  who  from  his  situation 
must  have  known  of  such  receipts,  yet  makes  no  effort  to  obtain  them 
or  have  them  applied,  is  jointly  chargeable  for  interest  with  his  asso- 
ciate. 

Where  trustees  transcending  their  powers,  make  investments  in  unproduc- 
tive property,  they  are  chargeable  with  interest. 

Where  property  is  conveyed  to  trustees,  to  be  sold  for  the  payment  of 
debts,  and  the  surplus  to  be  invested  in  stocks  to  produce  interest, 
which  interest  is  specifically  appropriated  by  the  terms  of  the  convey- 
ance; the  proceeds  of  such  estate  being  in  hand,  it  was  the  imperative 
duty  of  the  trustees,  to  have  invested,  unless  apportion,  or  the  whole, 
had  been  demanded  by  acknowledged  debts;  and  where  hopes  were 
entertained  by  the  trustees,  that  a  claim,  then  depending  in  court,  would 
be  perpetually  enjoined  when  it  had  been  litigated  for  several  years,  and 
•no  reasonable  expectation  of  a  speedy  close,  they  were  not  justified  in 
laying  by  the  money,  and  waiting  the  event  of  a  protracted  chancery 
suit.  In  such  a  case,  the  trustees  were  grossly  negligent,  and  they  must 
pay  interest. 

Compound  interest  will  be  allowed  where  a  trustee  is  directed  to  invest 
funds,  and  to  re-invest  the  dividends;  or  where  the  trust  directs  an  ac- 
cumulation, and  the  trustee  has  used  the  funds;  yet  the  ground  of  this 
allowance  is  the  actual  or  presumed  gain  of  the  trustee  by  the  use  of 
the  funds.  Where  the  circumstances  forbid  the  presumption  of  gain  by 
the  trustee,  it  will  not  be  allowed. 

To  trustees  who  have  invested,  or  made  efforts  to  invest,  trust  funds,  a 
rest  of  six  months  on  their  receipts,  without  interest,  will  be  allowed  as 
a  reasonable  time  within  which  to  invest;  but  where  they  manifested  no 
disposition  to  make  such  an  application  of  their  receipts,  as  the  trust 
contemplated,  no  such  rest  is  allowed. 

It  is  a  general  rule,  that  an  answer  responsive  to  a  bill,  is  evidence  for  the 
respondent;  but  the  answer  of  a  defendant,  when  it  asserts  a  right  affir- 
matively, in  opposition  to  the  plaintiff's  demand,  is  not  evidence. 

An  answer  will  not  support  a  matter  set  up  in  avoidance,  or  discharge, 
where  the  matter  of  avoidance  is  a  distinct  fact;  in  such  a  case,  the  de- 
fence must  be  proved. 

On  a  general  bill  to  account,  the  answer  is  no  evidence  of  disbursements; 
such  a  bill  is  nothing  more  than  a  demand  on  the  defendant,  to  shew  his 
receipts,  and  the  legal  sufficiency  of  his  expenditures. 

In  all  cases,  where  a  complainant  seeks  a  discovery  and  relief,  and  to  make 
out  his  case,  applies  himself  to  the  conscience  of  the  defendant,  if  in 
his  answer  the  liability  is  once  admitted,  there  can  be  no  escape  from  it, 
but  by  proof;  though  every  thing  which  he  says  with  regard  to  the  crea« 
tion  of  that  liability,  must  be  taken  together. 


OF  MARYLAND.  13 


RIXGGOLD  v.   RINGGOI.I). — 1826. 


By  an  equitable  construction  of,  and  by  analogy  to,  the  statutes  of  this 
state,  allowing  commissions  to  executors,  guardians,  and  trustees,  under 
judicial  sales,  commissions  may  be  allowed  to  conventional  trustees, 
though  there  was  no  agreement  between  the  parties  to  that  effect. 

"Where  the  chancellor's  decree  was  entirely  reformed  in  the  appellate 
court,  each  party  was  decreed,  in  a  case  of  cross  appeals,  to  pay  their 
own  costs  in  that  court. 

The  auditor's  report  may  be  excepted  to  in  the  appellate  court,  and  the 
whole  acceunts  gone  into,  whether  general  or  special,  or  no  exceptions 
had  been  taken  toil  in  the  court  of  chancery. 

CROSS  APPEALS  from  the  Court  of  Chancery.  In  order  that 
this  case  may  be  fully  comprehended,  we  give  the  statements 
made  of  it  by  the  Chancellor,  and  by  the  appellants'  counsel, 
on  the  appeal  by  S.  and  T  Ringgold.  The  appellants'  coun- 
sel stated  that  the  original  bill  in  this  case  was  filed  on  the  29th 
of  January  1811,  by  Mary  R'mggold,  wife  of  Thomas  Ring- 
gold,  and  the  children  of  said  Thomas  and  Mary,  by  James 
Gittings  the  elder,  their  next  friend.  It  charges,  1st.  That 
Thomas  Ringgold,  being  seized  of  a  considerable  real  and  per- 
sonal property  in  Virginia  and  Maryland,  and  being  largely 
indebted,  did  on  the  22d  of  October  1798,  convey  to  Samuel 
and  Tench  Ringgold,  the  defendants,  all  his  said  real  estate,  in 
trust,  to  sell  the  same  and  pay  his  debts,  and  for  other  purposes. 
2d.  At  the  same  time  Thomas  gave  to  his  said  trustees,  autho- 
rity to  collect  large  sums  of  money  due  to  him,  and  apply  them 
in  the  same  manner.  They  collected  large  sums,  the  amount 
thereof  not  ascertained,  and  they  are  required  to  render  an  ac- 
count thereof.  Shortly  after  the  execution  of  said  deed,  and 
until  the  filing  of  the  bill,  Thomas  and  his  wife  have  lived  se- 
parately, and  the  wife  and  children  have  been  supported  by  the 
father  oi  the  wife,  James  Gittings.  3d.  The  said  Thomasr 
Samuel  and  Tench,  seeing  the  justice  of  making  provision  for 
the  wife  and  children  of  Thomas,  which  had  been  omitted  in 
the  first  deed,  and  the  wife  being  willing  on  these  terms  to  re- 
linquish her  right  of  dower,  a  second  deed  to  Samuel  and 
Tench  was  executed  on  the  18th  of  December  1807,  in  which 
the  wife  relinquished  her  dower,  and  which  conveyed  to  them 
all  the  real,  and  a  large  personal  estate.  In  pursuance  of  said 
last  deed,  the  trustees  made  sale,  on  or  about  the  2d  of  May 
l&QS,  of  a  large  portion  of  the  real  and  personal  estate,  and 
have  received  large  sums  of  money,  bonds,  &c.  A  partial  ac- 


CASES  IN  THE  COURT  OF  APPEALS 


RINGBOLT)  v.   RISGOOLD. — 1826. 


count  thereof  has  been  rendered  to  the  complainants  by  Sa- 
muel. It  is  charged  that  there  still  remain  unsold  divers  other 
tracts  of  land  and  personal  estate.  The  complainants  are  in- 
formed that  the  trustees,  or  one  of  them,  are  or  is  largely  in- 
debted to  Thomas  for  the  proceeds  of  the  estate  of  his  brother 
Benjamin,  which  they  contend  ought  to  be  set  off  against  the 
sums  paid  by  the  trustees  for  Thomas,  and  pray  that  the  amount 
of  it  may  be  set  forth  in  the  answer  to  the  bill,  and  that  it  may 
be  accounted  for.  It  is  charged  that  the  trustees  have  not  paid 
any  part  of  the  proceeds  of  sale  to  the  complainants,  nor  have  they 
invested  it  in  any  stock.  Much  of  the  money,  with  the  bonds 
and  notes,  is  in  the  hands  of  Tench  Ringgold,  who  is  out  of  the 
jurisdiction  of  the  court.  The  bill  then  requires  the  defend- 
ants to  answer  the  premises,  and  particularly  what  part  of  the 
property  was  sold,  and  for  what  price,  and  that  they  render  a 
particular  account  of  their  transactions  under  said  deed  of 
trust.  Whether  they  have  not  received  large  sums  of  money 
dtie  to  Thomas  Ringgold?  and  if  yea,  that  they  render  a  par- 
ticular account  of  each  sum  so  received.  Whether  either  of 
them  was  indebted  to  Thomas;  whether  they  have  paid  any 
of  the  debts  due  from  said  Thomas,  and  state  the  same?  If 
any  yet  due,  to  what  amount,  and  to  whom  due?  Prayer,  that 
Samuel  and  Tench  be  compelled  in  all  respects  to  execute  the 
trust,  and  after  paying  the  debts,  to  invest  the  balance  for  the 
benefit  of  the  complainants.  Also  a  prayer  for  general  relief. 
The  complainants'  exhibits. — The  deed  of  the  22d  of  Octo- 
ber 1798  from  Thomas  Ringgold  to  Samuel  and  Tench  Ring' 
gold,  of  all  his,  (  Thomas' )  houses,  lands,  lots  and  tenements, 
situate  within  Maryland  and  Virginia,  in  trust,  to  sell  the 
same  at  public  or  private  sale,  for  cash,  or  on  credit,  as  they,  or 
the  survivor,  may  judge  most  expedient,  and  apply  the  pro- 
ceeds to  discharge  the  legacies  directed  in  his  father's  will,  to 
be  paid  by  Thomas.  2d.  To  discharge  all  judgments  at  the 
time  obtained  against  Thomas,  with  power  to  contest  sach  as 
are  not  just.  3d.  To  secure  and  indemnify  said  trustees  against 
all  bonds  entered  into  by  them,  or  either  of  them,  for  Thomas, 
and  all  costs,  fees  to  counsel,  4'C.  incurred  in  virtue  of  this  deed 
of  trust.  4.  To  pay  all  other  debts  then  due.  5.  And  as  to 
the  surplus,  to  permit  Thomas  to  possess  the  real  estate,  and 


OF  MARYLAND.  15 


KIKGGOLD  v.  Riuoeojj). — 1826. 


receive  the  interest  of  the  money,  or  have  the  same  invest- 
ed for  his  use,  during  his  life,  and  after  his  death,  his  wife, 
if  she  survives  him,  to  enjoy  one  third  part  of  the  real,  and 
to  receive  one  third  of  the  interest  of  the  money  to  her  own 
use,  and  the  rest  to  be  applied  to  such  persons  as  Thomas  by 
Jliis  last  will  shall  direct.     If  Thomas  survive  his  wife,  the 
whole  of  it  to  be  applied  as  directed  by  his  last  will.     To  this 
deed  there  was  no  relinquishment  of  dower.     Also  the  deed 
of  the   18th  of  December   1807,  from    Thomas  to   Samuel 
and    Tench,  for  all   Thomas's  land,  in  the  counties  of  Kent, 
Queen-Anne's  and  Baltimore,  wherever  situate,  in  the  state  of 
Maryland^  and  all  his  negroes,   stock,  horses  and  plantation 
untensils,  in  trust,  to  sell  immediately  the  whole,  and  after  pay- 
ing all  the  just  debts  of  said  Thomas,  to  invest  the  proceeds, 
when  received,  in  bank  stock,  stock  of  the  U.  S.  or  turnpike 
stock.     2d.  To  pay  to  the  wife  of  Thomas,  during  their  joint 
lives,  one-fifth  part  of  the  interest  or  dividends,  as  the  same 
may  be  received,  for  her  sole  use.     3d.  One-half  of  the  residue 
of  said  dividends  to  the  support  and  education  of  the  children. 
4th.  All  that  remains  to  be  paid  to  the  grantor.     5th.  If  the 
wife  of  the  grantor  survive  him,  she  is  to  receive  one-third, 
and  the  rest  to  be  applied  to  the  support  and  education  of  the 
children.     (Further  provision  in  case  the  grantor  survived  his 
wife. )     Finally,  the  whole  capital  to  be  transferred  to  such  of 
the  children  as  Thomas  shall  by  will  direct,  or  it  no  will,  to 
go  equally  to  the  whole.     To  this  deed  there  was  the  wife's 
relinquishment  of  dower.     Also  the  partial  account  of  the  trus- 
tee, (Exhibit  No.  3,)  which  it  is  stated  in  the  bill  was  render- 
ed by  Samuel  to  the  complainants.     It  purports  to  be  an  ac- 
count of  sales  of  land  and  negroes,  stock  and  farming  utensils, 
sold  by  S.  and  71  Ringgold,  without  date.     The  answer  of 
Samuel  Ringgold,  filed  the  12th   of  February  1814,  admits 
the  deeds;  that  the  defendants  accepted  of  the  trust,   and  sold 
the  property,  with  the  exception  of  some  parcels  of  land,  which 
are  described,  and  which  he  states  they  had  been  unable  to  sell. 
He  exhibits  accounts  marked  S.  R.  No.  1  to  No.  4,   which  he 
states  contain  a  full  exposition  of  his  conduct  as  trustee.     In 
these  he  has  charged  himself  with  all  monies  which  came  to 
his  hands  as  a  trustee,  and  gives  himself  credit  for  all  pay- 


16         CASES  IN  THE  COURT  OF  APPEALS 


RlNGGOLD    V      RlNGGOI.1). — 1826. 


ments  made  by  him,  and  that  there  was  due  to  him  on  the  13th 
of  March  1813,  the  sum  of  $13,084  77.  In  these  accounts  he 
has  not  charged  himself  with  $25,000  mentioned  in  the  ac- 
count rendered  to  the  complainants,  (their  Exhibit  No.  3,)  as 
the  price  of  land  sold  to  R.  S.  Thomas.  The  said  land  was 
sold  to  R.  S.  Thomas  for  certain  lots  at  Havre-de- Grace,  and 
certain  ferry  rights  on  theSusquehanna,  estimated  at  $18,000; 
and,  secured  by  mortgage,  $7,000,  amounting  together  to 
$25,000.  The  said  sale  was  considered  at  the  time  highly  bene- 
ficial to  Thomas  Ringgold,  and  the  complainants.  Thomas 
Ringgold,  before  the  exchange  took  place,  was  consulted,  and 
advised  it,  and  has  since  approved  of  it,  as  will  appear  by  JEx- 
hibitNo.5,  with  Thomas  Ringgold's  certificate  thereto,  of  the 
30th  of  March  1813.  The  property  received  in  exchange  as 
aforesaid  from  R.  S.  Thomas  was  conveyed  in  fee  simple  to  the 
trustees.  The  defendant  has  always  considered  the  same  to  be 
held  in  trust  for  Thomas  and  his  family.  Last  summer  (1813) 
the  ferry-house,  a  large  and  valuable  brick  building,  was  de- 
stroyed by  the  British.  Since,  the  defendants  have  sold  said 
property  for  $14,000,  for  which  they  are  accountable  to  the 
complainants.  Although  in  the  account  rendered  (complainants' 
Exhibit  No.  3,)  the  farm  called  Hopewe.ll  was  estimated  at 
$20,178,  it  was  in  reality  worth  only  $16,000.  It  was  put  up 
at  that  sum,  and  was  struck  off  at  that  bid,  at  the  time  of  the 
gale;  but  in  the  exchange  with  R.  S.  Thomas  it  was  estimated 
at  the  first  sum.  The  answer  next  states  judgments  obtained 
by  John  James  Ma  and  against  Thomas  Ringgold,  for  the  re- 
moval of  which  to  the  court  of  appeals,  the  defendant  became. 
Security  in  the  appeal  bonds.  If  these  claims  should  be  sus- 
tained, they  will  greatly  increase  the  balance  due  from  Thomas 
Ringzold  to  the  defendant.  It  is  stated  that  the  claims  were 
believed  to  be  fraudulent,  and  a  bill  for  relief  had  been  filed  in 
chancery.  There  are  other  claims,  but  of  the  precise  amount 
the  defendant  is  not  informed.  Exhibit  S.  R.  No.  6,  is  a  list 
of  lands,  negroes  and  specifics,  sold  by  the  trustees,  and  the 
previous  Exhibits,  S.  R.  1,  2,  3,  4,  will  show  what  part  of 
the  purchase  money  has  been  received  by  him.  As  to  fiery. 
JRinggold's  estate,  the  negroes  and  horses  were  divided  among 
the  representatives  before  the  execution  of  the  deed  of  trust; 


OF  MARYLAND.  17 


RlNGGOLD  V.  KlNOGOLD. 1826. 


the  balance  of  the  personal  estate  not  sufficient  to  pay  the  debts 
of  the  deceased.     The  real  estate  of  said  Benjamin  consisted 
of  land  in  Queen-*/! tine's,  (the  interest  of  Thomas  in  which 
..s  a  part  of  his  real   estate,  not  sold,)  and  a  tract  of  land  in 
Washington  county,  which  Thomas  himself  sold  to  the  other 
defendant,    Tench.     The  answer  also  sets  forth  a  legacy  of 
£500,    left  by  their  mother  to  the  defendants,  in  trust  for 
Thomas  and  his  iamily,  and  for  which  Thomas  is  credited  in 
statement  No.  4.     The  answer  of  Tench  Ringgold,  filed  the 
15th   of  July  1816,  exhibits  accounts,  which  show  the  monies 
received  and  paid   by  him — gives  the  statement  that  is  given 
by  the  other  defendant  relative  to  the  exchange  of  lands  with 
12.  S.  Thomas;  and  states  sundry  expenses  incurred  by  him, 
in  order  to  give  value  to  the  ferry  property  received  in  the  ex- 
change.    He  refers  to  exhibit  F,  for  showing  the  balance  due 
from  him  to  be  $1 4,811   15.     On  the  6th  of  October  1818, 
the   complainants  filed  a  supplemental  bill,  and  set  forth  the 
proceedings  in  the  former  suit.     They  charge,  that  agreeably 
to  the  provisions  of  the  deed  of  1798,  the  wife,   in  the  event 
of  her  surviving  the  husband,  was  entitled  to  a  certain  interest, 
and  the  rest  of  the  complainants  to  the  balance  of  the  trust 
property,  in  the   event  of  Thomas  Ringgold  dying  intestate; 
and  that  the  deed  of  1807  invested  complainants  with  an  im- 
mediate and  certain  interest,  in  certain  proportion,  in  one  half 
of  said  trust  estate,  during  the  lite  of  Thomas  Ringgold,  ami 
after  his   death,  with  a  contingent  interest  in  the  whole  pro- 
ceeds.    The  complainants  next  charge,  that   Thomas  Ring- 
gold  on  the  28th  of  March,  1816,  conveyed  all  his  interest  in 
said  property  to  his  two  sons,    Thomas  and  James,  in  trust, 
to  provide  for  his  comfortable  maintenance,    and  for  the  sup- 
port and  education  of  all  his  children — and  divide  the  princi- 
pal among  them  as  they  should  arrive  at  full  age,  and   with 
authority  to  the  grantees  to  compel  the  trustees  to  execute  the 
trust.     They  have  lately  been  surprised  to  hear,  that  Thomas 
Ringgold,  who  is  stated  to  have  died  in  1818,  had  left  a  will, 
which  the  complainants  exhibit,  leaving  to  his  daughter  Eli- 
zabeth £500,  on  her  arriving  at  18,  or  her  marriage;  $500  to 
Silence  Kinsley,   and  the  rest  to  be  equally  divided  among  all 
the  children,  including  Elizabeth.     The  executors  renounced, 
VOL.   1  3 


IS        CASES  IN  THE  COURT  OF  APPEALS 

RlNGGOLD  V.  RlNOCOLD. 1826. 

and  letters  of  administration  have  been  granted  to  the  widow. 
The  complainants  are  advised,  that  Thomas  Ringgold,  after 
the  said  deeds,  had  nothing  to  dispose  of  after  his  death. 
Thess  facts  having  happened  since  the  filing  of  the  original 
bill,  in  order  to  bring  the  rights  of  all  parties  before  the  court, 
and  to  have  a  full  settlement  ot  said  trust,  it  is  necessary  for 
complainants  to  file  this  their  supplemental  bill,  which  they 
pray  may  be  accepted  as  such.  They  have  reason  to  believe, 
that  the  defendants  have,  since  filing  the  original  bill,  sold 
more  of  the  trust  property,  and  have  received  the  purchase 
money,  and  other  monies,  for  property  sold  previously,  "which 
sums  of  money  are  no  ways  accounted  for  in  the  answers  of 
said  trustees  to  the  said  bill,  or  the  accounts  and  exhibits  there- 
with filed."  There  were  various  articles  of  property  received 
by  said  defendants  under  the  deeds  of  trusts,  and  various  sums 
of  money  received  by  them  before  the  filing  of  the  original 
bill,  which  are  not  noticed,  or  any  ways  accounted  for,  in 
their  answers,  and  the  accounts  and  exhibits  therewith  filed. 
They  mention  nine  negroes  taken  by  Samuel  at  $2000;  a 
negro  woman  and  her  two  sons,  worth  $800,  taken  by  Tench; 
also  considerable  sums  of  money  received  by  them  for  rents  of 
land  in  Kent  and  Queen-Anne's  counties  before  the  filing  of 
the  bill,  for  which  no  account  is  rendered.  They  conceive 
that  they  are  entitled  to  demand  the  $25.000  for  lands  sold  to 
Richard  S.  Thomas,  and  have  nothing  to  do  with  the 
property  and  ferries,  and  ferry  rights,  bought  from  JR.  S. 
Thomas;  yet  if  mistaken  in  this  they  have  a  right  to  de- 
mand an  account  of  the  rents  and  profits  thereof.  They 
call  upon  the  defendants  to  answer  the  premises,  and  fully 
and  particularly  account  for  all  their  acts  and  doings;  pay  over 
all  the  monies,  and  assign  to  them  all  the  trust  property.  The 
will  of  Thomas  Ringgold,  exhibited  by  the  complainants — In, 
it  is  the  following  clause:  "Whereas  I  am  fully  sensible  that  my 
brothers,  Samuel  Ringgold  and  Tench  JRinggold,  have  al- 
ways considered  my  interest,  and  have  done  every  thing  in 
their  power  to  advance  my  welfare,  and  that  of  my  family,  I 
do  hereby  fully,  completely,  and  in  the  most  ample  manner, 
ratify  and  confirm  all  purchases  and  sales  of  wkatever  nature 
or  kind,  of  my  property,  made  by  my  said  brothers,  or  either 


OF  MARYLAND.  19 


RlXGGOLI)    V.     IJlNCGOLD. 1826. 


of  them,  or  both  of  them. "  The  will  is  dated  the  6th  of  July 
1811,  and  was  proved  on  the  20th  of  May  1818.  S.  Ring- 
gold's  answer  to  the  amended  bill,  was  filed  the  6th  of  October 
1819.  He  admits  the  deed  of  Thomas  Ringgold  to  his  sons, 
and  his  will;  that  his  widow  was  appointed  administratrix;  states 
some  sales  which  have  taken  place  of  trust  property;  some  of 
the  money  still  due,  the  rest  paid  to  the  complainants.  He 
denies  that  he  had  received  any  money  not  accounted  for  in  his 
answer  to  the  original  bill.  The  negroes  delivered  to  him  at 
$2,000,  were  in  part  payment  of  a  debt  due  to  him  from  Thomas 
Ringgold.  He  accounted  in  his  former  answer  for  all  rents 
and  profits  received  by  him.  He  leaves  it  to  his  co-trustee  to 
render  an  account  of  the  rents  received  by  him,  also  of  the 
negroes  which  he  is  charged  to  have  received.  The  answer  of 
Tench  Ringgold  to  the  supplemental  bill,  states  that  he  has  sold 
no  property  since  filing  his  first  answer.  He  denies  the  charge 
ot  having  taken  a  negro  woman  and  her  children,  the  property 
of  Thomas  Ringgold.  In  answer  to  the  charge  of  having  re- 
ceived rents  and  profits  of  the  ferry,  he  gives  a  particular  ac- 
count of  the  contract  with  R.  S.  Thomas;  the  approbation  of 
it  by  the  complainant  Mary,  as  well  as  her  husband;  the  situa- 
tion of  the  ferry  property;  the  expenses  incurred  by  him  in 
regard  to  it,  &c.  &c.  An  abstract  of  which,  on  account  of  its 
length,  cannot  here  be  given. 

Commissions  issued,  and  testimony  taken  thereunder;  and 
by  agreement  of  the  parties,  the  auditor  was  directed  to  state 
the  accounts.  To  the  report  and  accounts  of  the  auditor,  both 
parties  excepted  upon  various  grounds.  The  case  having  been 
argued  was  submitted. 

JOHNSON,  Chancellor,  (July  Term,  1824.)  On  the  29th  of 
January  1811,  the  original  bill  was  filed,  setting  forth,  that  on 
the  22d  of  October  1798,  Thomas  Ringgold,  the  husband  of 
Mary,  and  father  of  the  other  complainants,  being  largely  in- 
debted, executed  a  deed  to  the  defendants  for  a  large  real  and 
personal  estate  in  Maryland  and  Virginia,  in  trust,  to  sell  and 
pay  his  debts.  First.  The  debts  and  legacies  of  his  father's 
will.  Second.  All  judgments  at  that  time  obtained,  with  the 
power  of  contesting  such  ds  were  not  considered  fair.  Third. 


20  CASES  IN  THE  COURT  OF  APPEALS* 

RiNGGOtn  v.  RINGGOLD. — 1826 

To  indemnify  the  defendants  as  his  sureties,  and  from  all  cost 
and  fees  to  counsel,  and  expenses  incurred  under  the  deed. 
Fourth.  To  pay  all  other  debts  at  that  time  due.  Fifth.  The 
surplus,  consisting  of  real  estate,  bonds  or  money,  in  trust,  to 
permit  the  grantor  to  hold  and  possess  the  real  estate,  and  receive 
the  interest  of  the  money,  or  have  it  laid  out  and  invested  for  his 
benefit,  during  life,  to  his  own  use  and  advantage;  on  his  death, 
living  the  wife,  she  to  have  one-third  of  the  real  estate,  and  to 
receive  the  interest  of  one-third  of  the  money  during  her  life,  in. 
lieu  of  dower.  Sixth.  The  other  two-thirds  to  be  conveyed 
and  applied  to  such  persons  as  Thomas  Ringgold,  by  his  will, 
shall  direct.  Seventh.  If  he  survived  his  wife,  then  the  whole 
to  be  conveyed  and  applied  according  to  his  will;  and  Eighth. 
If  he  died  intestate,  then  to  his  heirs  and  representatives.  To 
this  deed  Mrs.  Ringgold  was  not  a  party,  nor  did  she  release 
her  right  of  dower.  The  trustees,  as  the  bill  declares,  were 
also  authorised  to  receive  the  debts  clue  to  the  grantor,  and 
they  did  receive  them  to  a  large  amount.  Shortly  after  the 
deed,  Thomas  Ringgold,  and  wife,  by  mutual  consent,  agreed 
to  live  separate,  and  remained  so  when  the  bill  was  filed,  and 
she,  and  the  children,  as  is  stated  in  the  bill,  lived  with  and 
were  supported,  and  the  children  educated  by  her  father,  James 
Gittings.  Thomas,  Samuel,  and  Tench  Ringgold,  in  order 
to  make  provision  for  the  wife  and  children,  and  she,  on  the 
terms  of  such  provision,  agreeing  to  release  her  dower,  another 
deed,  on  the  18th  of  December  1807,  was  executed,  by  which 
Thomas  conveyed  to  Samuel  and  Tench  all  the  lands  and  real 
estate  of  Thomas,  lying  in  the  counties  of  Kent,  Queen-Anne's 
and  Baltimore,  wherever  situated  in  Maryland,  with  all  his 
negroes,  stock,  horses  and  plantation  utensils,  in  trust,  immedi- 
ately to  sell  the  whole  at  public  or  private  sale  for  the  best  price, 
and  after  paying  all  debts,  to  invest  the  proceeds,  when  received, 
in  bank  stock,  or  in  stock,  of  the  United  States,  or  turnpike 
stock,  as  shall  be  most  beneficial.  Second.  To  pay  to  the  wife, 
for  her  sole  and  separate  use,  during  the  joint  lives  of  husband 
and  wife,  one-fifth  of  the  interest  or  dividend  yearly,  or  half 
yearly,  as  the  same  may  be  received.  Third.  To  pay  and 
apply  one-half  of  the  residue  to  the  support  and  education  of 
the  children,  yearly  or  half  yearly.  Fourth.  To  pay  the  whole 


OF  MARYLAND.  21 


RlNGGOLD  V.  RlNOGOLD. 1826. 


residue  to  Thomas-,  and  in  the  event  of  the  wife's  surviving, 
then,  Fifth.  She  is  have  one-third,  in  lieu  of  the  one-fifth. 
Sixth.   The  other  two-thirds  to  support  and  educate  the  chil- 
dren ;  and  if  Thomas  survived,  Seventh.  Then  one-fifth  given 
to  the  wife  to  go  to  him.     Eighth.  Till  the  proceeds  of  the 
sale  are  invested,  the  interest  to  be  paid  and  applied  as  received, 
in  the  same  proportions    and   manner  to  the  same  persons. 
Ninth.  To  transfer  and  assign  the  whole  capital,   whether  in 
stocks   or  debts,  to  such  of  their  children  as  Thomas  by  will 
shall  direct,  subject  to  the  previous  trusts;  and  if  he  died  intes- 
tate, then  the  whole  capital  to  be  equally  divided  amongst  their 
children,  subject  to  the  previous  trusts.     This  deed  was  signed 
by  the  wife,  as  well  as  by  Thomas,  Samuel,  and  Tench  Ring- 
gold;  and  she  formally  released  her  dower.     In  virtue  of  this 
deed,  as  the  bill  declares,  the  trustees,  on   or  about   the  2d  of 
May  1S08,  sold  a  large  portion  of  the  real  and  personal  estate, 
received  divers  sums  of  money,  bonds,  notes  and  mortgages,  of 
which  a  partial  account  was  rendered  by  Samuel;  that  there 
remained  unsold  other  lands  and  personal  property.     That  the 
trustees,  or  one  of  them,  is   largely  indebted  for  the  proceeds 
of  the  estate  of  Benjamin  Ringgold,  deceased,  vhich  the  bill 
claims  to  be  set  off  against  what  the  trustees  may  have  paid  for 
Thomas.     No  part  of  the  proceeds  of  sale  have  been  invested, 
and  the  greater  part  of  the  money,  bonds,  and  other  securities, 
the  bill  declares,  are  in  the  hands  of  Tench  Ringgold,  residing 
in  the  District  of  Columbia.     The  amount  ot  sales,  according 
to  the  account  rendered  by  Samuel,  a  copy  of  which,  Exhibit 
No.  3,  is  filed  with  the  bill,  is  §48,886  90.     la  this  account,  a 
tract  of  land  called  Hopewell,  with  certain  other  property  spe- 
cified, is  stated  to  have  been  sold  to  Richard  S.  Thomas  for 
$25,000.     A  memorandum  appears  at  the  foot  of  the  account 
as  follows,  to  wit:  "The  ferries  at  Susquehanna  we  have  taken 
from   Mr.  Thomas  at  $18,000.     The  deed  is  given  to  S.  and 
T.  Ringgold,  as  they  had  no  right  under  the  deeds  of  trust  to 
invest  the  monies  in  lands,  and   S.  and  T.  Ringgold  are  an- 
swerable for  that  amount.     They  mean  to  sell  them  as  soon  as 
they  can  to  advantage,  which  shall  accrue  for  the  benefit  of, 
Thomas  Ringgold,  Mrs.  Ringgold,  and  the  children."     The 
original  account,  of  which  Exhibit  No.  3  is  a  copy,  distinguish- 


32        CASES  IN  THE  COURT  OF  APPEALS 

RINGGOLD  V-  RlNGGOLD. 1826. 

ed  by  Exhibit  B,  is  in  the  handwriting  of  Samuel  Ringgold. 
Samuel  Ringgold,  in  his  answer  filed  on  the  12th  of  February 
1814,  admits  the  trust  deeds,  and  the  sale  of  the  real  and  per- 
sonal estate  for  the  purposes  specified,  except  part  of  the  real 
estate  of  Benjamin  Ringgold  in  Queen- *flnne's,  and  about  60 
acres  in   Kent  county,  which  they  have  not  been  able  to  sell. 
His  accounts,  exhibited  with  his  answer,  S.  R.  No.  1,  to  S.  JS. 
No.  4,  contain  a  full  statement  of  his  conduct  as  trustee.     In 
those  statements  he  has  charged  himself  with  all  monies  that 
have  come  to  his  hands,  and  credited  himself  with  payments 
and  disbursements,  and  there  was  due  to  him  on  the   13th  of 
March  1813,  $13,084  77.     In  these  statements  the  respondent 
says  he  has  not  charged  himself  with  the  sale  of  the  property 
estimated  in  the  account  rendered  by  him  to  the  complainants, 
of  $25,000,  for  land  sold  to  R.  S.  Thomas,  for  lots  and  land  at 
Havre-de-Grace,  with  ferries  and  ferry  rights  on  Susquehanna 
river,  in  which  account  Hopewell  was  valued  at  $18,000.    Be- 
fore the  sale  or  exchange    Thomas  Ringgold  was  consulted, 
and  he  approved  the  measure,  and  it  was  deemed  a  beneficial 
transaction.     JR.  S.  Thomas  conveyed  to  S>.  and  T.  Ringgold, 
and  that  he,  (Samuel,)  always  considered   himself  a  trustee 
for  Thomas  Ringgold  and  family.     The  last  summer,  the  an- 
swer states,  that  the  ferry-house,  a  large  and  valuable  building, 
was  destroyed  by  the  British,  and  since  then  the  trustees  have 
sold  the  property  for  $14,000,  for  which  they  are  accountable. 
And  although  in  the  account  rendered  by  the  respondent,  Hope- 
well  is  estimated  at  $20,178,  yet  he  alleges  it  was  only  worth 
$16,000,  the  sum  it  was  put  up  for  at  the  public  sale,  and  struck 
off  at  the  trustees'  bid.    In  the  negotiation  with  R.  S.  Thomas 
it  was  estimated  at  $20,178  by  which  the  trustees  made  $4,178 
for  the  complainants.     That  exclusive  of  the  $13,084  due  to 
the  respondent,  he  has  made  himself  answerable  for  a  large 
sum  on  account  of  a  judgment  obtained  by  one  Maund,  use 
of  Ricketts  and  Newton.     Suits  were  brought  on  the  appeal 
bonds,   executed  on  the  removal  of  the  original  judgment  to 
the  court  of  appeals,  and  judgments  obtained,  and  if  compelled 
to  pay,  the  balance  due  him   will  be  proportionably  increased. 
The  claim,  (Maitnd's)  was  thought  unjust,  and  therefore  con- 
tested.    The  answer  denies  that  the  complainants  have  been 


OF  MARYLAND.  23 


RlNGGOLD  V.  RlNGGOlD. 1826. 


entirely  maintained  by  Mr.  Gittings,  for  the  respondent  paid 
two  thousand  dollars.  Samuel  Ringgold  administered  on 
Benjamin  Ringgold's  estate,  and  the  negroes,  and  some  other 
property,  were  divided  between  the  representatives  before  the 
deed  of  trust,  not  leaving  enough  to  pay  the  debts.  The  part 
of  the  real  estate  in  Washington  county  of  Benjamin's,  that 
Thomas  was  entitled  to,  he  sold  to  Tench.  Tench  in  his 
answer  states  in  substance,  so  far  as  relates  to  Hopewell,  and 
the  ferries,  the  same  facts  as  in  Samuel's  answer.  In  the 
original  answer  of  Tench  no  vouchers  were  filed;  exceptions 
were  taken,  which  were  sustained;  and  on  the  15th  of  July 
1816,  an  amended  answer  was  filed,  accompanied  with  certain 
vouchers.  Thomas  Ringgold  having  died  on  the  6th  of  Oc- 
tober 1818,  a  supplemental  bill  appears,  setting  forth,  that  on 
the  28th  of  March  1816,  Thomas  Ringgold  transferred  to  his 
two  sons  Thomas  and  James,  all  his  interest  in  the  trust  pro- 
perty, in  trust,  out  of  the  interest  and  dividends,  to  provide 
for  the  father's  comfortable  maintenance,  for  the  support  and 
education  of  his  two  sons  and  their  brothers  and  sisters,  during 
their  minority,  and  to  divide  the  principal  and  interest  equally 
between  them,  their  brothers  and  sisters,  as  they  respectively 
arrived  at  age,  and  authorised  the  grantees  to  compel  a  settle- 
ment with  the  defendants.  Thomas  Ringgold,  on  the  6th  of 
July  1811,  made  a  will,  and  after  certain  bequests  devised  the 
residue  of  his  estate  equally  amongst  his  children — the  execu- 
tors renounced,  when  letters  of  administration  were  obtained 
by  Mary  his  widow.  Since  the  original  bill,  the  supplemen- 
tal bill  charges,  that  the  trustees  have  sold  more  of  the  trust 
property,  and  received  more  money,  and  in  the  answers  to  the 
original  bill  they  did  not  account  for  all  they  had  received, 
particularly  nine  negroes  taken  by  Samuel  at  $2000,  and  that 
they  have  not  accounted  for  rents  received.  In  the  supple- 
mental bill  it  is  alleged,  that  the  deed  of  trust  to  the  sons  being 
subsequent  to  the  will,  revoked  it.  Samuel,  in  his  answer  to 
the  last  bill,  denies  that  any  of  the  trust  funds  were  sold,  ex- 
cept some  lands  in  Kent,  for  which  suits  were  depending  to 
recover  the  purchase  money;  and  except  another  small  piece, 
the  purchase  money  for  which  was  received  by  James  G. 
Ringgold,  one  of  the  complainants.  Admits  the  delivery  of 


24  CASES  IN  THE  COURT  OF  APPEALS 

RlNGGOLD  V.  RlNGGOLD. — 1826. 

the  negroes  to  him  at  $2000.     On  the  13th  of  July  1820,  with 
the  consent  of  the  parties,  an  interlocutory  decree  was  made, 
directing  the  auditor  "to  state  an  account  upon  the  evidence 
already  taken,  and  upon  such  other  evidence  as  shall  be   pro- 
duced before  him  by  either  of  the  parties.     That  the  auditor 
shall  state  accounts  according  to  the  instructions  of  each  of  the 
parties,  and  that  all  equity,  as  to  the  rights  of  the  parties,  be 
reserved  until  final  hearing."     After   taking,  in  virtue  of  the 
decree,  a  variety  of  evidence,  and  with  the  mutual  admissions 
of  the  correctness  of  various  items  against  the  defendants,  and 
of  sundry  disbursements  in  their  favour,  on  the  6th  July  1822, 
his  report  was  made,  containing  several  accounts  in  pursuance 
of  the  complainants'  instructions — One  of  the  defendant's,  and  a 
third  in  conformity  with  the  auditor's  own  judgment.    From  the 
voluminous  papers  and  documents,  the  variety  of  evidence,  and 
the  extensiveness  of  the  transaction,  much  labour  and  attention 
are  indispensable  for  a  correct  decision  of  this  cause;  but  the  well 
arranged  view  of  the  subject  taken  by  the  auditor  in  his  report 
and   accounts,   greatly  contributes  to  relieve  the   court.     In 
making  his  report  he  has  distinguished  those  disbursements 
which  are  admitted,  from  those  not  admitted,  or  disputed,  or 
reserved  for  his  further  consideration.     Those  statements  he 
has  distinguished  by  Nos.  1  and  2.     From   the   evidence   and 
vouchers  admitted,  the  defendants'  receipts  are  stated  before  and 
to  the  time  of  the  second  deed  of  trust  of  the  18th  of  Decem- 
ber 1807,  distinguishing  them  by  their  respective  sources,  and 
classing  them  accordingly  in  separate  statements  marked  A,  B, 
C,  and  D.   From  those  materials  an  account  current  between  each 
of  the  trustees  is  stated  to  the  date  of  the  second  deed,  charg- 
ing and  crediting  each  with  his  own  receipts,  and  admitted  dis- 
bursements, and  with  interest,  showing  the  balance  then  due  to 
or  from  either      The  interest  is  charged   from  the  end  of  six 
months  alter  the  date  of  the  receipt.     These  accounts  are  num- 
bered 1  and  2,     From  the  evidence  referred  to,  statement  E 
is  made  to  show  the  several  sums  which  the  trustees  were 
chargeable  for  on  account  of  sales  of  the  trust  estate,  by  them 
made  about  the  close  of  the  year  1807,  and  afterwards.      This 
statement,  as  the  auditor  most  correctly  observes,   makes   an 
important  part  of  every  subsequent  account;  and  in  regard  to 


OP  MARYLAND."  25 


KlNGGOLI)    V.    RlNOOOLII. 1826. 


the  sale  of  Hopewell,   and  the  ferries,  taken  in  exchange,  is 
controverted  by  both  parties. 

In  the  statement  E,  the  defendants  are  charged  with  the 
sum  of  $16,320,  on  account  of  the  sale  of  Hopewell,  when  ac- 
cording to  exhibit  B,  (the  list  of  sales  furnished  by  the  trustees,) 
that  tract  is  charged  as  having  been  sold  for  $20,178.  The 
sale  of  this  tract  of  land  presents  one  of  the  important  sub- 
jects of  controversy.  To  present  the  subject  matter  of  con- 
troversy in  a  clear  light,  the  auditor  has  returned  with  his  re- 
port several  accounts  predicated  on  different  principles — the 
account  No.  4  leaves  a  balance  against  the  defendants  of 
346,963  92;  this  is  the  account  formed  according  to  the  au- 
ditor's judgment.  Account  No.  5,  grounded  on  the  complain- 
ants' instructions,  makes  a  balance  in  their  favour  of  $74,463 
23;  and  account  No.  6,  founded  on  the  defendants'  instruc- 
tions, makes  the  balance  only  $21,900  39.  Exceptions  have 
been  taken  by  the  complainants  and  defendants,  each  except- 
ing to  all  the  accounts  that  are  inconsistent  with  the  accounts 
they  claim  as  correct;  in  other  words,  the  complainants  insist 
on  account  No.  5,  and  the  defendants  on  account  No.  6.  The 
case  has  been  fully  and  elaborately  argued,  since  then  that  at- 
tention has  been  bestowed  on  the  cause  which  its  magnitude 
and  importance  demanded. 

The  first  subject  of  inquiry  is  to  what  extent  are  the  defend- 
ants responsible  on  account  of  the  sale  or  exchange  of  the  tract 
of  land  called  Hopewell? 

Trustees,  who  faithfully  and  diligently  discharge  the  duties 
they  take  on  themselves  to  perform,  can  never  sustain  loss;  they 
are  only  liable  for  what  they  duly  receive  in  the  performance 
of  the  trust;  and  acting  bona  fide  within  trust  limits,  should  an 
injudicious  sale  of  the  trust  funds  be  made,  yet  no  responsibi- 
lity attaches  to  them,  they  can  only  be  called  on  to  account  for 
the  amount  actually  received.  But  when  the  trustee  transcends 
his  limits,  when  the  funds  confided  to  his  limited  superinten- 
dance  are  applied  to  objects  foreign  from  the  trusts,  then  he  be- 
comes responsible  for  the  utmost  value  of  the  funds  thus  mis- 
applied. Lupton  vs.  White,  15  Ves.  432.  The  Attorney 
General  vs.  Fullerton,  2  Ves.  8f  Beam.  265.  Hart  vs.  Ten 
Eyck,  2  Johns.  Ch.  Rep.  108,  116. 
VOL.  i.  4 


CASES  IN  THE  COURT  OF  APPEALS 


RlNGGOU)    V-    RlNGGOLD.  -  1826. 


The  deeds,  under  which  the  trustees  acted,  cannot  be  consi- 

dered as  authorising  them  to  exchange  the  land  for  other  land. 

The  object  of  the  deeds  was  to  raise  money  to  meet  pressing 

demands  to  discharge  the  debts  Thomas  Ringgold  was  re- 

sponsible for,  to  indemnify  his  sureties,  and  to  invest  the  sur- 

plus as  prescribed  for  the  benefit  of  the  respective  persons  men- 

tioned in  the  deed,  and  to  the  extent  as  herein  provided.     Oi 

the  limited  powers  conferred  by  the  deeds,  the  trustees  were 

perfectly  aware,  and  therefore,  in  the  account  of  sales  rendered 

by  S.  Ringgold,  he  remarked,  "The  ferries  at  Susquehanna 

we  have  taken  from  Mr.  Thomas  at  $18,000.     The  deed  is 

given  to  S.  and  T.  Ringgold,  as  they  had  no  right,  under  the 

deeds  of  trust,  to  invest  the  monies  in  lands,  and  S.  and   T. 

Ringgold  are  answerable  for  that  amount."     If  trustees,  mis- 

applying the  trust  funds,  are  responsible  for  the  utmost  value, 

and  as  the  tract  of  land  called  Hopewe.ll  has  been  parted  with 

by  them  to  an  object  foreign  from  the  trust,  it  would  appear, 

that  the  only  subject  of  inquiry,  in  regard  to  the  extent  of  tht 

trustee's  responsibility  on  that  account,  is  the  value  of  the  land.. 

When  the  tract  was  exposed  to-  public  sale,  it  appears  by  the 

evidence  it  was  struck  off  at  $16  per  acre,  the  price  it  was  set 

up  at.     That  afterwards  they  agreed  to  sell  it  to  R.  S.'  Thomaa 

-for  that  price,  which  ultimately  he  refused,  when  the  exchange 

was  accomplished,  in  which  Hopewell  was  estimated  at  $20,178. 

If  a  trustee  diverts  the  funds,  by  applying  them   to  objects  fo- 

reign from  the  trust,  the  cestui  que  trust  has  a  right,  either  to 

receive  that  which  the  trustees  obtained,  or  to  make  the  trustee 

answerable  for  the  full  value  of  that  which  he  parted  with. 

The  cestui  que  trusts  in  the  present  cause,  if  competent  to  act, 

could  have  elected  to  take  the  ferries  in  lieu  of  Hopewell^  but 

they  were  not  bound  to  do  so;  and  as  they  claim  the  real  value 

of  Hopewell  in  1807,  when  it  was  exchanged,  they  are  entitled 

to  receive  it.     On  the  part  of  the  defendants  no  evidence  is 

produced,  except,  that  when  exposed  at   public  sale,  it  was 

struck  off  at  $16  an  acre,  and  that  R.  S.  Thomas,  after  agree- 

ing to  give  that  price,  refused  to  comply.     Three  witnesses  are 

produced  on  the  complainants'  side,  viz.  G.  W.  Thomas,  Wil- 

liam Barroll  and  Thomas  Worrell,  all  of  whom  concur,  that 

the  land  exchanged  was  worth  $25,000;  they  do  not  designate 


OF  MARYLAND. 


RlXOGOLD  V.  RlNGGOLD. 1826. 


the  value  of  each  part,  but  in  the  aggregate  fix  the  value  to  be 
that  which  the  trustees  had  placed  on  it  in  making  the  exchange. 
Wm.  Pearce  makes  Hopewcll  to  be  worth  $20  an  acre,  which 
is  $222  more  than  it  was  valued  at. 

I  am  not  apprised  of  any  case  being  determined  on  which 
the  value  of  funds,  misapplied  by  trustees,  have'been  come  at 
by  fixing  on  the  amount  they  offered  them  at;  the  establishing 
such  a  principle  might  be  productive  of  the  most  serious  con- 
sequences, and  prove  highly  detrimental  to  the  interest  of  the 
cestui  que  trusts;  but  if  in  any  instance  it  might  be  resorted 
to,  surely  not  where  the  trustees  had  fixed  subsequently  on  an 
enhanced  value,  and  when  that  was,  by  disinterested  witnesses, 
confirmed  as  the  real  value.  The  defendants  are  therefore  to 
be  charged  with  Hopewell,  at  the  price  attached  to  it  at  the  time 
of  the  exchange.  The  trust  in  this  cause  was  undertaken  from 
the  best  of  motives,  attended  with  great  expense,  and  considera- 
ble inconvenience  to  the  trustees;  they  must  sustain  a  loss;  the 
unfortunate  result  of  the  exchange;  the  consequent  destruction 
of  the  property  on  the  ferry  establishments,  oil  fall  on  them, 
although  the  trusts  reposed  did  not  justify  the  ruinous  transac- 
tions, all  flowing  from  that  exchange.  Yet  I  feel  fully  assured 
1  he  trustees  acted  from,  and  were  governed  by,  the  purest  of 
motives,  to  wit,  to  extricate  their  brother,  and  provide  for  his 
family.  And  although  principles,  too  powerful  to  be  resisted, 
call  on  the  court  to  cast  those  losses  on  them,  yet  so  far  a£  the 
just  power  of  the  court  extends,  they  should  be  protected. 

In  the  statement  of  the  accounts  by  the  auditor,  he  has  al- 
lowed to  the  trustees  a  commission.  It  is  truq  the  British  au» 
thonties  refused  to  trustees  commissions  eo  nomine,  and  yef 
they  allow  a  compensation  for  the  time  employed  in  the  per- 
formance of  the  trust,  under  the  appellation  of  a  per  diem. 
But  in  this  state  i\\e  per  diem  has,  if  it  ever  existed,  long  since 
been  abandoned,  and  the  compensation  is  made  by  way  of  com- 
mission. To  the  cestui  que  trust  the  name  of  the  compensa- 
tion is  of  no  moment;  and  to  permit  a  per  diem  to  be  the 
governing  rule,  would  be  for  the  trustees  to  fix  on  the  amount 
of  the  compensation,  or  the  court  must  reject  that  part  of  the 
report  stating  the  time  they  were  engaged,  and  resort  to  some 
other  standard,  difficult  to  be  fixed  on.  The  defendants  are 


CASES  IN  THE  COURT  OF  APPEALS 


RlNQOOLI)  V.  RlNGCOLD. 1826. 


therefore  to  be  allowed  the  commissions  according  to  the  prin- 
ciples of  the  report. 

The  auditor  has  given  credit  to  the  defendants  for  several 
sums  alleged  to  be  paid  by  them,  in  the  performance  of  the 
trust,  to  support  which  no  other  voucher  exists  except  the  ac- 
counts rendered  by  the  defendants  in  their  answers  to  the  origi- 
nal and  supplemental  bills.  In  the  case  of  Haft  vs.  Ten  Eyck, 
2  Johns.  Ch.  Rep.  87,  the  law  on  this  subject  came  under  the 
consideration  of  Chancellor  Kent.  There  are  all  the  items  in 
the  account  of  Van  Rensselaer  (one  of  the  defendants,)  unsup- 
ported by  evidence,  and  resting  alone  on  the  answer,  were  not 
correctly  rejected.  The  bill  was  against  him,  and  others,  for  an 
account  as  administrators,  and  charging  them  with  various  acts 
of  fraud.  Van  Rensselaer  in  his  answer,  sets  up  certain  claims 
against  the  testator  himself,  and  those  were  attempted  to  be 
supported  by  his  answer  alone.  After  examining  the  claims 
specified  in  the  account,  and  remarking  on  each,  the  chancellor 
reviews  the  law  generally,  and  comes  to  the  conclusion — "That 
those  charges  in  the  account,  which  are  without  proof,  are  in- 
admissible, and  cannot  be  upheld  by  the  answer,  is  a  proposi- 
tion which  I  consider  to  be  as  settled  in  law  as  it  is  in  reason.'5 

In  the  course  of  the  discussion,  a  distinction  is  taken  be- 
tween reading  an  answer  either  at  law  or  in  chancery,  when  it 
is  introduced  as  evidence,  and  the  effect  of  the  answer,  in  the 
very  case  under  consideration,  and  before  the  court  for  its  de- 
cision, when  that  answer  was  put  in  issue.  In  the  first  it  seems 
conceded,  if  part  of  the  answer  is  read,  the  other  party  has  a 
right  to  read  the  whole  as  evidence — not  so  when  the  answer 
is  put  in  issue.  It  seems  to  me,  that  the  law  is  most  clearly 
established,  that  when  the  defendant  in  chancery  admits  a 
charge  against  him,  and  desires  to  remove  it  by  the  statement 
of  a  distinct  fact,  by  way  of  avoidance,  and  the  answer  is  put 
in  issue,  the  proof  of  the  matter  of  avoidance  is  on  him.  But 
the  nature,  or  the  precise  meaning,  of  the  word  avoidance, 
does  not  so  clearly  appear.  And  all  the  cases  which  have  pre- 
sented themselves  to  my  view,  are  of  the  representatives  of 
deceased  persons,  as  executors  or  administrators,  when  called 
on  to  account,  setting  up  claims  against  the  deceased,  not  for 
expenses  incurred  in  the  performance  of  their  trusts. 


OF  MARYLAND,  29 


TClNGOOLD    V.     RlNGOOLI). 1826. 


The  case  before  Lord  Chancellor  Cowper,  as  reported  in 
Gilbert's  Law  of  Evidence,  45,  was  a  bill  by  creditors  against 
an  executor  for  an  account  of  the  personal  estate.  The  execu- 
tor stated  in  his  answer,  that  the  testator  left  £1,100  in  his 
hands.  Afterwards,  on  a  settlement  with  the  testator,  he  the 
executor  gave  his  bond  for  £1,000;  and  the  other  hundred 
pounds  was  given  by  the  testator  for  his  care  and  trouble.  It 
was  urged,  in  behalf  of  the  executor,  that  having  charged  him- 
self, and  no  testimony  appearing,  he  ought  to  find  credit  where 
he  swore  in  his  own  discharge.  But  it  was  resolved  by  the 
court,  that  when  an  answer  was  put  in  issue,  what  was  con- 
fessed and  admitted  by  it  need  not  be  proved,  but  that  the  de- 
fendant must  make  out,  by  proof,  what  was  insisted  on  by  way 
of  avoidance.  There  is  an  obscurity  in  the  report  of  this 
case.  As  no  one  can  be  heir  to  a  living  person,  so  no  man 
alive  can  have  an  executor,  (unless  in  old  times,  when  he 
might  be  civiliter  mortuus;)  and  therefore,  a  testator  could 
never  give  to  his  executor  £100  out  of  $1100  he  had  left  with 
him,  and  take  his  bond  for  the  balance. 

If  the  defendant  in  his  answer  admits. the  receipt  of  money, 
but  in  the  same  sentence  says  he  paid  it  away,  the  disbursement 
claimed  needs  no  other  proof;  but  if  in  one  sentence  the  receipt 
Is  admitted,  and  in  another  the  payment  alleged,  it  must  be 
proved  otherwise  than  by  the  answer.  Kirkpatrick  vs.  Love, 
J)mb.  589.  Blount  vs.  Burrow,  4  Bro.  Ch.  Rep.  74.  Hart  vs. 
Ten  Eyck,  2  Jo/ins.  Ch.  Rep.  87,  &c.  And  these  rules  are  said 
to  be  similar  to  those  which  govern  in  a  court  of  law.  But  I  am 
not  aware  that  such  principles  prevail  at  law.  It  is  very  true,  that 
when  proof  is  obtained  at  law,  that  the  defendant  at  one  time 
admitted  he  received  money  from  or  of  the  plaintiff,  he  shall 
not  free  himself  from  the  effect  of  that  admission,  by  declar- 
ing at  a  different  time  he  restored  it  to  him,  or  applied  it  for 
his  use.  A  court  takes  the  whole  conversations  or  declarations 
made  at  the  same  time,  and  does  not  limit  its  effect  to  this  or 
that  sentence.  If  at  law  the  plaintiff  uses  as  evidence  the  de- 
fendant's account  to  charge  him,  he  is  entitled  to  read  the  resi- 
due to  discharge  him,  and  is  not  confined  to  such  as  may  be 
connected  with  the  same  sentence.  The  same,  if  the  letters 
oi  the  defendant  are  read  in  part  by  the  plaintiff  to  charge,  the 


30         CASES  IN  THE  COURT  OF  APPEALS 

RlNGGOLD  V.  RlXGGOLD. 1826. 

residue  may  be  resorted  to,  to  exonerate  from  the  claim;  and 
notwithstanding  the  high  names  maintaining  the  justice  of  the 
rule,  that  what  is  admitted  in  the  answer,  cannot  be  defeated 
by  the  answer  when  put  in  issue,  I  must  confess  the  justice  of 
the  rule  is  not  so  clear  to  my  mind.  But  the  rule  is  not  only 
said  to  be  just,  but  a  contrary  doctrine  would  be  pernicious, 
and  render  it  absolutely  dangerous  to  employ  the  jurisdiction 
of  this  court,  inasmuch  as  it  would  enable  a  defendant  to  de- 
feat the  plaintiffs  just  demands  by  the  testimony  of  his  own 
oath,  setting  up  a  discharge  or  matter  in  avoidance.  Hart  vs. 
Ten  EycJe,  2  Johns.  Ch.  Hep.  90.  It  appears  to  me  more 
just,  that  if  the  complainant  relies  on  the  defendant's  answer 
to  maintain  his  claim,  that  he  should  take  that  answer  entire; 
that  the  whole,  as  it  would  at  law,  should  be  before  the  court, 
with  the  powers  ot  believing  such  parts,  and  no  more  than 
was  believed  to  be  true.  The  rule  is  too  technical  for  a  court  of 
equity,  which  excludes  the  defendant  from  the  beneficial  parts 
of  his  answer,  while  his  adversary  is  suffered  to  avail  himself 
of  those  parts  in  his  favour.  A  court  of  equity  forces  a  de- 
fendant to  disclose  the1  whole  transactions,  and  in  the  instances 
of  executors  and  trustees,  forces  them  to  render  an  account, 
not  only  of  their  receipts,  but  disbursements;  and  it  would 
seem  but  just,  that  at  least  the  attention  of  the  court  should  be 
called  to  those  statements  made  in  compliance  with  its  mandate, 
and  not  to  have  its  eyes  closed,  and  its  understanding  arrested, 
by  being  told  the  answer  is  at  issue,  and  therefore  the  complai- 
nant may  seize  on  admissions  in  his  favour,  and  exclude  the 
defendant  from  simultaneous  statements;  for  let  it  be  remem- 
bered, the  whole  answer  is  presented  to  the  court  at  the  same 
time. 

The  case  now  before  me  is  not  perfectly  similar  to  those  re- 
ferred to  in  the  opinion  of  Chancellor  Kent.  Here,  the  defen- 
dants for  many  years  acting  as  trustees  in  the  settlement  of  a 
complicated  estate,  were  authorised  to  pay  debts,  provide  for 
the  support  of  the  cestui  que  trusts,  and  having  entered  on  the 
trusts,  after  a  considerable  time  are  called  on  for  a  settlement. 
No  imputation  or  charge  of  fraud  is  made  against  them;  they 
are  called  to  render  a  particular  account  of  their  transactions 
by  the  original  bill,  and  by  the  supplemental  bill;  that  they  fully 


OF  MARYLAND. 


KlMGGOLD  V.  RlNCGOtU. — 1826. 


and  particularly  account  for  all  their  acts  and  doings.  The  ac- 
counts and  the  correctness  of  them  to  a  very  great  extent,  at 
least,  by  the  admissions  of  the  complainants,  are  just.  If  it 
would  be  absolutely  dangerous  to  employ  the  jurisdiction  of 
the  court,  inasmuch  as  it  would  enable  a  defendant  to  defeat  the 
plaintiff's  just  demands  by  the  testimony  of  his  own  oath, 
setting  up  a  discharge  or  matter  of  avoidance,  may  not  the  same 
be  said  on  the  other  side,  that  it  is  absolutely  dangerous  to  a 
defendant  to  call  upon  him  for  an  account  of  his  transactions 
as  trustee,  then  to  sift  from  his  answer  every  thing  to  charge 
him,  and  turn  him  over  to  seek  for  proof  of  his  own  disburse- 
ments, great  part  of  which  cannot  be  obtained,  owing  to  the 
confidence  between  him  and  the  cestui  que  trusts.  But  the 
dangers  on  the  part  of  the  plaintiff  and  of  the  defendant  are  re- 
moved, by  permitting  the  whole  answer,  if  any  part  is  relied 
on,  to  go  before  the  court,  with  liberty  to  reject  such  parts  as 
are  not  believed  to  be  true.  And  believing,  from  the  whole  of 
the  transactions,  that  all  the  disbursements  allowed  by  the 
auditor,  except  that  relating  to  Hopewell^  are  true,  they  are  al- 
lowed, and  the  exceptions  of  the  complainants  on  that  subject 
overruled. 

On  the  subject  of  interest  I  shall  not  attempt  to  review  the 
numerous  authorities  produced  at  the  argument,  but  content 
myself  by  observing  the  interest  has  been  charged  in  conformi- 
ty with  the  usual  practice  in  this  state.  When  trustees  are  di- 
rected to  invest  money,  and  fail  to  do  it,  they  are  liable  to  be 
charged  with  compound  interest,  unless  some  sufficient  reason 
exists  to  free  them.  But  that  applies  to  cases  of  plain  trusts, 
where  the  duty  is  obvious,  and  the  means  of  performance  clear- 
ly within  their  reach.  In  this  case,  from  the  whole  of  the 
evidence,  it  is  difficult  to  fix  on  any  period  that  the  trustees  had 
money  in  hand  to  be  invested.  The  receipts  by  them,  and  the 
expenditures,  are  so  blended  together  that  the  rule  usually 
adopted  in  the  interchange  of  dealings  between  merchants  of 
interest  accounts,  appears  the  most  judicious,  and  the  allow- 
ance of  the  six  months  to  pay  away  or  invest  before  the  trus- 
tees should  be  charged  with  interest,  appears  not  unjust.  The 
interest,  therefore,  allowed  by  the  auditor  to  them,  as  well  as 
that  with  which  they  are  charged,  is  allowed. 


CASES  IN  THE  COURT  0?  APPEALS 


RINGGOLD  v.  RINGGOI.D.  —  1826. 


It  is  difficult  in  this  cause  to  divide  the  mutual  responsibility 
of  the  defendants  to  the  complainants;  the  funds  confided  to 
them  have  in  part  been  so  blended  with  their  own  affair;  and 
the  defendant,  Samuel,  having  permitted  Tench  to  receive  so 
large  a  part  of  the  money,  when  the  former  was  in  advance. 
By  the  cestui  que  trust  the  confidence  was  reposed  in  both  of 
the  trustees,  one  had  no  right  to  suffer  the  funds  to  remain  un- 
employed in  the  hands  of  the  other,  especially  when  he  had 
left  the  state,  and  was  beyond  the  jurisdiction  of  the  court. 
The  acceptance  of  the  trust,  to  use  the  language  of  Chancellor 
Hardwicke,  obliged  them  to  execute  it  with  fidelity  and  rea- 
sonable diligence.  2  Jltk.  406.  And  although  I  am  perfectly 
satisfied  it  never  was  the  intention  of  either  of  the  trustees  to 
conduct  themselves  so  as  to  produce  loss  to  the  cestui  que 
trusts,  yet  by  dividing  the  responsibility,  and  making  each 
only  liable  for  what  he  received,  I  apprehend  would  cast  a 
heavy  loss  on  them.  My  opinion  is,  that  each  is  liable  to  the 
complainants  for  the  whole  sum  due  them. 

In  respect  to  Thomas  Ringgold's  sanctioning  accounts,  and 
to  his  approval  of  the  exchange  of  Hopewell,  it  can  have  no 
effect;  after  the  deeds  of  trust  were  executed,  he  alone  could 
not  control  or  direct  their  objects.  In  regard  to  the  accounts, 
I  am  perfectly  assured  he  did  not  know  whether  they  were 
just  or  not;,  but  when  his  condition  is  taken  into  view,  united 
with  the  cautious  manner  the  court  views  the  transactions  be- 
tween the  trustee  and  the  cestui  que  trusts,  it  appears  to  me 
that  no  tribunal  ought  to  say  that  his  confirmation  of  those  ac- 
counts should  free  the  defendant,  Samuel  Ringgold,  from  ac- 
counting in  this  court.  In  order,  therefore,  that  the  opinion 
expressed  should  be  carried  into  effect,  the  auditor  is  directed! 
to  state  an  account  pursuant  thereto.  The  accounts,  when. 
stated,  not  to  be  subject  to  exception. 

The  auditor,  in  conformity  to  the  above  decretal  order,  stated 
an  additional  account,  making  a  balance  due  from  the  defend- 
ants to  the  complainants,  of  $53,857  79,  with  interest  on 
$39,480  46,  part  thereof,  from  the  1st  of  July  1822,  until  paid. 

BLAND,  Chancellor,  (December  term  1824.)  The  chancel- 
lor having  considered  the  decretal  order  pronounced  in  this 


OP  MARYLAND. 


RlNGGOLD  V   RlNGGOLD. 1826. 


cause  on  the  twenty-sixth  day  of  July,  in  the  year  eighteen 
hundred  and  twenty-four,  as  well  as  the  report  of  the  auditor 
of  this  court  of  the  account  between  the  parties,  which  has 
been  stated  conformably  to  said  order,  and  exhibited  in  this 
court  on  the  twenty-seventh  day  of  September  in  the  year 
aforesaid — Decreed,  That  the  report  of  the  auditor  be  confirm- 
ed, and  that  the  defendants,  Samuel  Rinsgold  and  Tench 
Ringgold  shall,  on  or  before  the  first  day  of  December  next, 
pay  to  the  complainants,  or  bring  into  this  court  to  be  paid  to 
them,  the  sum  of  fifty-three  thousand  eight  hundred  and  fifty- 
seven  dollars  and  seventy-nine  cents,  together  with  interest  on 
thirty-nine  thousand  four  hundred  and  eighty  dollars  and  forty- 
six  cents,  part  of  the  first  mentioned  sum,  from  the  first  day  of 
July,  in  the  year  eighteen  hundred  and  twenty-two,  and  the 
costs  incurred  by  the  said  complainants  in  this  court. 
From  which  decree  both  parties  appealed  to  this  court. 

The  cross  appeals  were  argued  separately,  before  BUCHANAN, 
Ch  J.  and  EARLE,  ARCHER  and  DORSEY,  J.  but  as  the  court  in 
their  decree  consolidated  the  cases,  one  report  only  will  bfc 
made,  embracing  the  points  argued  in  both. 

In  the  argument  of  the  two  appeals  the  four  first  points 
were  raised  by  the  appellants'  counsel,  on  the  first  appeal,  as  to 
the  law  arising  thereon,  and  the  remaining  points  by  the  appel- 
lants' counsel  on  the  second.  We  number  them  in  succession 
i'or  the  purposes  of  this  re.port. 

1.  The  appellants  (S.  and  T  R.)  ought  not  to  be  charged 
on  account  of  the  Hopewell  estate  with  more  than  they  receiv- 
ed for  the  same;  or  if  so  charged,  they  are  entitled  to  the  full 
benefit  of  the  bond  of  indemnity. 

2.  Samuel  Ringgold  is  not  responsible  for  the  trust  fund 
which  came  to  the  hands  of  Tench  Ringgold,  his  co-trustee. 

3.  The  charges  of  interest  against  8.  and  T.  Ringgold  are 
objected  to. 

4.  The  trustees  were  entitled  to  more  commission  than  was 
allowed  to  them  by  the  decree  of  the  Chancellor. 

5.  The  answers  of  the  defendants  are  not  per  se,  any  evi- 
dence for  them;  but  they  are  bound  to  sustain  all  their  dis- 
bursements (except  those  which  come  under  the  head  dc  mini- 

i  5 


34        CASES  IN  THE  COURT  OF  APPEALS 

KlNfiGOI/D    V.    RlNGGOiD.  -  1826. 

mis,)  by  proof,  as  much  so  as  the  complainants  are  bound  to 
offer  proof  of  the  amount  of  trust  property  which  came  into 
their  hands; 

6.  Interest  is  to  be  charged  on  all  receipts  from  their  dates, 
as  the  trustees  never  invested,  and  never  intended  to  invest. 
If  a  rest  of  six  months  be  allowed,  they  are  then  chargeable 
\vith  compound  interest,  or  interest  on  the  annual  balance  of 
principal  and  interest. 

7.  No  provision  having  been  made  for  allowing  to  the  trus- 
tees any  compensation  or  reward  for  their  trouble,  this  court  is 
not  competent  to  make  any  such  allowance. 

8.  Tench  Ringgold  is  not  a  competent  witness  on  behalf  of 
Samuel,  his  co-trustee,  as  he  swears  directly  to  relieve  himself 
from  responsibility  in  regard  to  the  M'Mechen  transaction,  &c. 


ty  (Attorney  General  of  U.  S.)  Jones,  Taney  and  Ma- 
gruder,  for  the  appellants  in  the  first  appeal,  on  the  first) 
second,  third  and  fourth  points. 

1.  On  the  first  point  —  As  to  the  charge  on  account  of  the 
ffopewell  estate.  The  sale  of  it  as  expressly  proved,  was 
made  before  the  deed  of  November  1807.  It  was  authorised 
by  the  deed  of  1798,  which  gave  to  the  trustees  the  only  au- 
thority they  possessed  at  the  time  of  the  sale  to  R.  S-  Thomas. 
The  deed  of  1798,  it  must  be  admitted,  did  not  authorise  the 
trustees  to  take  other  land  in  part  payment  of  the  purchase 
money.  On  the  other  hand,  it  cannot  be  denied  that  the  con- 
tract, if  it  had  been  authorised  by  the  deed  of  trust,  would 
have  been  a  judicious  one,  and  beneficial  to  T.  Ringgold's 
estate.  In  examining  this  question  we  must  inquire  what  was 
the  value  of  each  tract  at  the  time  of  the  contract,  and  before 
the  ferry  property  was  destroyed  by  the  British.  The  latter 
was  then  of  great  value  and  every  day  becoming  more  valua- 
ble, owing  to  the  increase  of  travelling  between  the  east  and 
south.  At  the  time  of  the  sale  it  rented  for  $2,000  per  an- 
num. What  was  the  value  of  the  Hopewell  estate?  It  never 
rented  for  more  than  $1,000  with  all  the  negroes  and  stock 
and  utensils  upon  it.  With  these  facts,  some  estimate  may  be 
formed  of  the  Hopewell  landed  estate;  and  when,  moreover,  it 
appeared  that  the  tenants  who  gave  that  rent  did  not  find  it  a 
good  bargain.  The  deed  of  trust  authorised  a  sale  of  the 


OP  MARYLAND. 


Rijjt;ooLj>  v.   RINCOOID. — 1826. 


Hopewell  farm,  and  one  of  the  purposes  for  which  that  deed 
was  executed  (the  payment  of  judgments  to  a  large  amount 
against  T.  Ringgold}  imperiously  required  that  funds  be 
raised  though  by  a  forced  sale.  The  land  was  advertised  to- 
be  sold  at  public  sale — general  notice  was  given — a  numerous 
assemblage  of  people  drawn  to  it,  and  among  them  all,  those 
in  the  county,  who,  according  to  the  proof,  were  likely  to  be 
disposed  or  able  to  buy.  The  sale  failed — nobody  offered 
even  $16  per  acre.  Afterwards,  ho wever,-  R.  S.  Thomas 
agreed  to  give  for  it  that  price,  and  the  contract  was  made 
with  the  entire  consent  of  T.  Ringgold)  who  was  present,  and 
without  opposition  from  any  quarter.  The  land  being  now,  as 
was  rightfully  supposed,  disposed  of,  it  became  necessary  to 
make  disposition  of  the  negroes,  stock,  &c.  on  the  farm,  as 
their  master  T.  Ringgold  could  no  longer  employ  them. 
With  his  consent  (without  it  they  could  not  have  been  dispos- 
ed of,  as  the  deed  of  1798  did  not  convey  personal  property, 
and  the  deed  of  1807  was  not  yet  executed,  if  thought  of)  all 
the  slaves,  &c.  were  disposed  of.  It  must  be  borne  in  mind 
that  according  to  the  proof,  in  order  to  rent  the  farm  well,  it 
was  necessary  for  the  owner  to  supply  the  slaves  and  stock 
which  it  required.  After  all  the  personal  property  had  been 
disposed  of,  R.  S.  Thomas  refused  to  take  the  land.  What 
then  was  the  situation  of  the  trust  property?  Judgments  to  a 
vast  amount,  and  each  of  them  a  lien  upon  the  property.  The 
judgments  of  Maund,  which  are  of  so  much  importance  in 
this  cause,  bound  the  land;  and  although  an  injunction  had  been 
obtained,  yet  that  injunction  might  at  any  time  have  been  dis- 
solved, and  the  trustees,  being  securities  in  the  appeal  bond, 
would  be  bound  to  pay  the  money.  It  is  in  this,  most  embar- 
rassing state  of  things,  that  the  trustees  are  called  upon  to 
listen  to  the  second  proposition  of  R.  S.  Thomas.  And  what 
is  that  proposition  made  by  a  man  who  had  been  importuned 
to  take,  and  refused  to  take  this  land  at  $16  per  acre?  To 
agree  to  take  the  land  valued  at  $25,000,  provided  only  that 
the  trustees  would  take  in  part  payment  the  ferry  property,  to 
be  valued  at  $18,000,  and  he  to  secure  the  payment  of  $7,000, 
the  balance  of  the  purchase  money,  and  the  interest  of  which 
is  almost  equal  to  the  rent  of  the  Hopewell  farm,  after  de- 


36         CASES  IN  THE  COURT  OF  APPEALS 

KlNOGOLD    V.     RINGGOLD. 18'J6. 

ducting  from  the  highest  sum  for  which  it  ever  did  rent,  only 
legal  interest  upon  the  proceeds  of  the  sale  of  the  personal  estate, 
which  the  tenant  took  with  the  land.  The  trustees  are  called 
upon  to  accept  of,  or  refuse  the  offer.  They  do  not  act  hastily. 
T.  Ringgold,  the  only  person,  except  the  creditors,  who  had  a 
right  to  object,  approves  of  it,  and  has  again  and  again  sanctioned 
it.  One  of  the  defendants  in  his  answer  states,  that  T.  Hinggold's 
•wife,  whose  consent  was  not  at  all  necessary,  also  approved  of 
it.  The  sale,  and  the  terms  of  sale,  were  sanctioned  by  the 
man  who  had  a  right  to  object;  and  never  objected  to  by  any 
human  being,  until  the  filing  of  what  is  called  the  supplemental 
bill  in  this  cause;  and  not  disaffirmed  in  that,  even  if  the  com- 
plainants had  any  right  to  object  to  it.  Reliance  may  be  had 
on  the  partial  account  exhibited  by  the  complainants,  and  which 
they  say  was  rendered  to  them  by  S.  Ringgold.  This  partial 
account  is  a  particular  account  of  all  the  property  which  came 
to  the  hands  of  the  defendants,  in  which  any  part  of  the  family 
of  T.  Ringgold  had  any  interest.  It  includes  not  merely  the 
property  which  was  conveyed  to  them  by  the  deed  ot  1807, 
and  in  which  the  complainants,  at  the  time  of  the  filing  their 
bill,  had  any  interest,  but  also  the  property  disposed  of  by  them 
under  the  deed  of  1798,  in  which  the  complainants,  in  the 
character  in  which  they  originally  sued,  had  no  interest.  It 
contains  also  the  legacy  of  Mrs.  Mary  Ringgold,  of  a  debt 
due  to  her  from  S.  Ringgold,  a  debt  due  from  Tench  Ringgold, 
and  also  the  personal  property  on  the  Huntingfield  estate, 
which  she  left  to  the  defendants,  in  trust  for  such  of  the  chil- 
dren of  T.  Ringgold  as  they  might  select,  and  with  the  ex- 
press condition  that  no  part  of  it  should  be  answerable  for  his 
debts.  And  yet  it  is  contended,  that  this  very  property,  thus 
bequeathed  by  Mrs.  Ringgold,  ought  to  be  considered  a  part 
of  the  trust  property  held  under  the  deeds;  and  ought  to  be  con- 
sidered a  part  of  the  funds  for  the  payment  of  T.  Ringgold's 
debts — that  these  trustees  ought  to  violate  the  trust  created  by 
Mrs.  Ringgold  for  the  benefit  of  the  complainants.  But  *S". 
Ringgold  offered  to  take  the  ferry  property  at  its  valuation,  if 
the  family  of  T.  Ringgold  objected  to  the  arrangement.  In 
the  first  place  S.  Ringgold  could  make  no  offer  by  which  the 
co-trustee  could  be  bound.  But  if  he  could,  when  did  T.  Ring- 


OF  MARYLAND.  37 


RiNGGOLD  V.  RlNGGOLD. 1826. 


gold,  or  any  member  of  his  family,  object  to  the  contract  with 
R.  S.  Thomas,  or  allow  them  to  treat  the  ferry  property  as 
their  own?  Subsequent  events,  not  to  be  foreseen  in  1807 — 
the  war  with  Great  Britain,  the  famous  exploit  of  Admiral 
Cockburn,  and  destruction  of  the  houses  at  the  ferry,  greatly 
lessened  the  value  of  this  property,  and  might  have  furnished 
a  cestui  que  trust,  with  a  reason  for  disaffirming  this  contract. 
But  it  would  then  have  been  too  late,  even  if  then,  which  is 
not  the  fact,  any  person  had  immediately  objected  to  the  con- 
tract. We  need  not,  however,  rest  upon  the  circumstance,  that 
the  offer  of  S.  Ringgold  was  conditional.  What  if  there  was 
uncontradicted  proof,  that  both  of  the  defendants  intended,  at 
the  time  the  contract  was  made  with  R.  S.  Thomas,  to  take 
the  deed  for  this  property  to  themselves,  and  to  hold  it  as  their 
own?  By  the  terms  of  the  contract  it  was  to  be  paid  for  with 
trust  funds.  The  consideration  of  it  was  a  part  of  the  pro- 
ceeds of  sale  of  the  Hopewell  farm;  and  although  the  defendants 
had  determined  to  make  this  a  part  of  their  own  private  estate, 
and  to  charge  themselves  with  the  whole  sum  for  which  Hope- 
well  sold,  yet  equity  says,  that  even  in  that  case  it  shall  rest 
with  the  cestui  que  trust,  whether  it  shall  be  the  private  pro- 
perty of  the  trustees,  or  a  part  of  the  trust  estate.  And  T. 
Ringgold,  the  cestui  que  trust,  has  always  claimed  it  to  be  a 
part  of  the  trust  fund,  arid  insisted  that  the  trustees  should  not 
charge  themselves  with  the  price  at  which  Hopewell  sold,  and 
take  to  themselves  this  property.  This,  it  is  in  proof,  he  hart 
decided  to  do,  before  the  deed  of  1807.  No  matter  then  what 
was  the  intention  of  the  trustees;  it  depended  not  upon  their 
intention,  but  upon  the  sovereign  will  of  the  cestui  que  trust^ 
if  declared  within  a  leasonable  time,  whether  this  should  be 
the  private  property  of  the  trustees,  or  a  part  of  the  trust  fund; 
and  it  being  in  proof,  that  T.  Ringgold  immediately  (before  the 
complainants  had  any  interest  in  the  estate,)  at  the  very  time 
the  contract  was  made,  claimed  it,  and  said  it  should  be  con- 
sidered as  part  of  the  trust  estate,  the  trustees  could  not  claim 
it,  but  held  it  in  trust;  and  so  holding  it,  it  passed  by  the  deed 
of  1807,  which  was  but  a  new  declaration  of  trusts,  and  which 
alone  could  give  the  complainants  originally,  a  standing  in  the 
court  of  chancery.  Assuming  then  that  the  deed  of  179* 


KlKUGOLD  V.  RiNGGOLD. 1826. 


did  not  authorise  the  contract  with  7?.  S.  Thomas,  it  is  con- 
tended, that  it  is  now  too  late  to  impeach  it.  It  is  no  breach 
ot  trust,  if  the  trustee  acts  with  the  cestui  que  trusty  or  he 
acquiesces.  2  Com.  Dig  Ait.  Chancery,  (4  W.  32,)  722.  Lang- 
ford  vs.  Gascoyne,  11  Ves.  333,  335.  ParJeesvs.  White,  Ib. 
225.  Newl  on  Cont.  467.  Traffordvs.  Boehm,  3  Mk.  444. 
Brice  vs.  Stokes,  1 1  Ves.  324.  Fellows  vs.  Mitchell  Sf  Owen, 
1  P.  Wms.  81.  It  cannot  be  impeached  in  this  suit,  because 
7?.  S.  Thomas  is  no  party.  He  had  notice  of  the  trust,  and 
the  deed  to  him  referred  to  the  deeds  which  gave  the  trustees 
the  right  to  sell.  If  a  purchaser  has  knowledge  of  the  trust 
deed  under  which  he  purchases,  he  becomes  himself  a  trustee. 
Murray  vs.  Ballon,  1  Johns.  Ch.  Rep.  575.  Selby  vs.  Alston, 
3  Ves.  341.  2  Fonbl.  153,  154,  155.  2  Madd.  Chan.  103. 
1  Madd.  Chan.  364,  365.  The  complainants,  if  they  choose, 
have  a  right  to  disaffirm  the  contract  with  R.  S.  Thomas,  and 
claim  the  property  sold  to  him.  They  may  perhaps,  ask  that 
the  sale  be  set  aside;  but  they  cannot  claim  a  right  to  sell  to  the 
trustees,  who  never  agreed  to  buy,  and  to  make  them  pay  an 
extravagant  price  for  the  land. 

Again — If  these  points  be  in  favour  of  the  complainants,  yet 
T.  Ringgold  gave  to  the  defendants  a  bond  oi  indemnity.  He, 
the  cestui  que  trust,  claimed  the  ferry  property,  purchased,  as 
must  be  admitted,  with  trust  funds,  and  that  the  trustees  might 
not  be  prejudiced,  gave  them  a  bond  to  save  them  harmless 
against  all  loss.  If  they  are  to  be  charged,  then,  with  any  loss 
sustained  by  them  in  consequence  of  this  contract  with  R.  S. 
Thomas,  they  have  a  right  to  resort  to  a  part  of  the  fund  in 
the  court  of  chancery  for  their  indemnity. 

To  understand  this  case  it  is  only  necessary  to  observe,  that 
from  the  record  it  appears  that  in  the  year  1798  T.  Ringgold 
was  entitled  to  a  large  real  and  personal  estate,  and  at  the  same 
time  was  indebted  to  a  considerable  amount.  He  is  induced  to 
execute  a  deed  of  trust,  and  thereby  subjected  to  the  trusts 
therein  mentioned,  not  all  of  his  property,  but  his  real  proper- 
ty, reserving  still  to  himself,  absolutely  and  exclusively,  the 
jus  disponendi  of  the  whole  of  his  personal  estate — negroes, 
debts,  money,  stock,  and  every  thing  but  his  land.  The  trusts 
declared  in  the  deed  are  simply  to  pay  all  debts,  of  whatever 


OF  MARYLAND.  39 


RlXOOOLD    V.    RlIfOCOLD. 1826. 


description,  then  due;  and  secondly,  the  residue  to  be  at  his 
absolute  disposal.  His  wife  is  mentioned  in  it,  but  she  is  men- 
tioned in  order  to  secure  to  her,  in  the  event  of  her  surviving 
her  husband,  precisely  what  the  law  gives  to  her,  without  the 
consent  of  her  husband.  It  is  under  this  deed  the  sale  of 
Hopewell  was  made,  and  of  course  no  person,  who  could  not 
claim  to  be  a  cestui  que  trust,  had  a  right  to  impeach  that  sale. 
In  1807  a  second  deed  was  executed;  and  in  this  deed,  for  the 
first  time,  provision  is  made  for  the  wife  and  children.  This 
deed  too  conveyed,  in  addition  to  the  land  not  already  disposed 
of,  all  "his  negroes,  stock,  horses,  and  plantation  utensils,"  still 
reserving  to  himself  the  privilege  of  disposing,  when  and  to 
whom  he  pleased,  of  all  his  money,  bank  and  road  stock,  and 
all  debts  then  due  to  him.  The  personal  property  at  Hopewell 
had  been  previously  sold,  and  the  amount  of  sales  constituted  a 
portion  of  the  debts  due  to  him.  The  $7,000  due  from  R.  S. 
Thomas  did  not  pass  by  the  deed  of  1807,  and  has  not  been 
claimed  by  the  creditors  under  that  deed.  Over  all  this  fund, 
and  especially  the  proceeds  of  sale  of  the  personal  estate  at 
Hopewell,  T.  Ringgold  had  an  absolute  control,  and  this 
alone  is  an  ample  fund  for  the  indemnity  of  the  trustees.  It' 
then  the  trustees  are  to  sustain  any  loss  in  the  settlement  of  the 
account  for  the  sale  of  the  Hopewell  estate,  upon  what  princi- 
ple of  law  or  equity  are  they  to  be  deprived  of  the  indemnity 
thus  secured  to  them?  Not  because  there  is  no  fund,  to  which 
they  can  resort,  because  _here  is  a  fund,  of  which  the  owner  re- 
tained an  entire  disposal,  and  quite  sufficient  for  their  reim- 
bursement. Not,  surely,  because  this  fund  ought  to  be  applied 
to  the  payment  of  the  debts,  as  such  a  doctrine  is  a  glaring  out- 
rage upon  every  principle  of  right.  It  would  be  to  strip  a  man 
ot  his  property  against  his  will.  He  provides  by  deed  for  the 
payment  of  his  debts,  and  for  the  support  of  his  family.  He 
is  to  judge  what  property  shall  be  conveyed  by  that  deed;  and 
for  any  such  purposes  he  does  not  choose  to  transfer  money, 
bank  stock,  or  debts  due  to  him.  Could  the  court  of  chancery 
alter  his  deed,  and  subject  to  any  of  the  trusts  property  which 
it  was  not  his  pleasure  to  subject  to  any  of  them?  For  the  be- 
nefit of  his  creditors,  and  of  his  family,  he  places  his  lands, 
bis  negroes,  &c.  beyond  his  control.  They  arc  made  by  the 


40     CASES  IN  THE  COURT  OF  APPEALS 

RlNGGOLlI  V.  KlNGGOLD. 1826. 

man,  who  alone  has  authority  to  dispose  of  them,  to  be  the 
sole  fund — 1st.  For  the  payment  of  debts;  and  2d.  To  provide 
for  the  support  of  himself  and  family.  Of  all  the  rest  of  his 
property,  (if  that  conveyed  by  the  deed  of  trust  be  sufficient 
to  pay  debts,  even  although  the  residue  afforded  a  miserable 
support  for  his  family,)  he  has  a  right,  so  courts  of  law  and 
equity  must  say,  to  dispose  as  he  pleases.  To  appropriate  this 
property  not  included  in  the  deeds  of  trusts,  (and  the  disposi- 
tion of  which  the  grantor  reserved  exclusively  to  himself,)  to 
any  of  the  purposes  of  the  trust  deed,  would  be  a  downright 
violation  of  the  right  of  property — the  exercise  of  a  power  by 
the  court  of  chancery  which  no  department  of  government  can 
possess  in  a  free  country.  He  had  a  right  to  give  away  this 
property,  and  so  far  as  he  yet  retained  the  ability,  he  had  a 
right,  not  only  to  sanction  the  sale  made  by  his  trustees,  but  to 
oblige  himself  to  indemnify  them  from  any  damage  which  they 
sustained  by  reason  of  a  disaffirmance  of  their  sales,  by  credi- 
tors, or  others,  if  others  there  were  to  impeach  their  conduct. 

To  deprive  the  defendants  of  the  indemnity  on  which  they 
rely,  it  cannot  be  said  that  T.  Ringgold  is  to  be  treated  as  a 
person  non  compos,  or  from  circumstances  incapable  of  acting 
freely.  It  would  be  a  violation,  not  merely  of  established 
law,  but  of  common  justice,  that  such  charges  should  be  lis- 
tened to  in  argument,  when  all  mention  ot  them  is  studiously 
avoided  in  pleading.  No  one  act  of  T.  Ringgold  is  complain- 
ed of — no  settlement  is  impeached — no  contract,  into  which 
he  ever  entered,  is  attempted  to  be  set  aside.  So  far  from 
this,  the  complainants  claim  under  his  deeds  as  valid.  They 
insist  that  he  could  dispose  of  his  property.  They  insist 
moreover  on  the  deed  of  1812,  which  gave  to  them  their 
standing  in  the  court  of  chancery.  If  any  such  charge  had 
been  properly  made,  the  record  affords  the  most  ample  refuta- 
tion of  it.  As  to  the  acquiescence  &c.  of  T.  Ringgold,  they 
cited  Bricevs.  Stokes,  11  Ves.  319.  Lang  ford  vs.  Gascoync, 
Ib.  336.  Trafford  vs.  Boehm,  3  Jltk.  444.  As  to  his  com- 
petency, &c.  they  cited  White  vs.  Wilson,  13  Ves.  88,  89. 
•Attorney  General  vs.  Parnther,  3  Bro.  Ch.  Rep.  442. 

They  insisted  that  it  must  be  either  fraud  or  supine,  and 
very  supine  negligence,  that  induces  a  court  of  equity  to  deal 


OV  MARYLAND.  4l 


RlSGGOLi)  V.  HlSGGOLI). 1826. 


rigorously   with  a  trustee.       Cajfrey  vs.  Darby,  6  Ves.  495. 
Bovey  vs.  Smith,  1  Vern.  144.      Where   a   trustee  conducts 
himself  to  the  best  of  his  judgment,  the  court  will  deal  with 
lenity  towards  him.   Belchier  vs.  Parsons,  Jlmbl.  219.   Pow- 
ell v.-}.  Evans,  5  Ves.  843.     Trajford  vs.  JBoehm,  3  Atk.  444. 
If  the  trustees  had  the  right  to  take  the  ferries  in  exchange  for 
Hopewell,  then  the  admission  of  S.  Ringgold  was  a  mistake 
on  his  part  and  is  not  binding  on  him.      Lansdown  vs.  Lans- 
doion,  Mos.  364.  Lammot  vs.  Bowly,  6  Harr.  fy  Jo/ins.  500. 
2.  On  the  second  point.     In  2  Fonbl.  184,  the  general  rule 
IB  hid  down  as  to  the   liability  of  one  trustee  for  the  receipts 
of  the  other.     He  who  wishes  to  get  rid  of  a  general  rule 
must  show  the  exceptions  to  it.      The  chancellor  in  his  decree 
says  that  Samuel  is  to  be  charged,  because  he  suffered   Tench 
to  misapply  the  trust  fund.     This  was  not  the  business  of  Sa- 
muel.    He  had  no  right  to  call  upon  Tench,  nor  Tench  upon, 
him.     Trustees  have  all   equal  power  and  authority.  2  Fonbl. 
134.     The  deed  of  1798   was  to  secure  a  debt  due  to    Tench, 
and  to  indemnify  him  for  becoming  one  of  the  sureties  of  Tho- 
mas. How  then  could  Samuel  call  upon  Tench?  An  equal  trust 
was  reposed  in   both;  and  neither  could   control  the  other.     If 
Tench  abused  the  trust  the  cestui  que  trust  might  have  applied 
to  the  court  of  chancery  for  his   dismissal.     The  deed  of  trust 
executed  by  Tench  to  Samuel  is  to  secure  the   latter  against 
loss.     If  the  complainants  have  any  claim  against  Tench,  they 
may  resort  to  that  deed;  but  they  have  no  right  because  of  that 
deed  to  call  on  Samuel  in  this  suit.     On  this  point  they  re- 
ferred also   to   Brice  vs.  Stokes,  11    Ves.   319.     Hovey  vs. 
Blukeman,  4  Ves.  606.  JSaconvs.  Bacon,5  Ves.  331.  Cham- 
bers vs.  Minchin,  7  Ves.  199. 

3.  On  the  third  point.  The  case  relied  upon  by  the  auditor,  of 
Dunscomb  vs.  Dunscomb,  1  Johns.  Rep.  508,  to  justify  the 
charge  of  interest  on  all  monies  received  after  six  months,  is 
not  in  point.  There  nothing  was  to  be  done  but  to  invest.  In 
this  case,  before  the  trustees  were  authorised  to  invest  one  cent, 
they  were  bound  to  ascertain  and  pay  all  just  debts,  and  con- 
test those  which  were  deemed  unjust.  It  is  in  proof  that  there 
were  debts  of  this  description.  Maund  had  recovered  two 
judgments  in  the  general  court,  one  at  May  terra  1798,  and  the 
VOL.  i.  G 


42         CASES  IN  THE  COURT  OF  APPEALS 

•V*         I  I      •l«M*MNMV>M •••in      i     -•         •' 

lllNGROLI)  V.  RlNCHOLD. 1826. 

other  at  May  term   1799,  each  for  £  1250,  with  interest  from 
the  26th  of  July  1796,  and  costs.     This  claim  was  to  be  re- 
sisted, and  was  resisted  in  equity  by  T.  Ringgold.     It  related 
to  a  sale  made  by  Maund  to  T.  Ringgold,  of  a  parcel  of  land 
in  a  distant  part  of  Virginia.     The  proof  of  the  alleged  fraud 
was  to  be  obtained  therein.     Persons  were  to  be  discovered 
who  would  consent  to  act  as  commissioners  to  take  testimony. 
Surveys  were  necessary,  and  to  be  made  when  it  suited  the  con- 
venience of  surveyors  to  undertake  them.     Pending  the  suit 
in  the  court  of  chancery,  the  war  with  England  broke  out. 
Maund  died,  and  new  parties  were  to  be  made;  and  owing  to 
these  and  other  difficulties  in  the  way  of  a  decision,  a  final  de- 
cree was  not  passed   until  March  term  1818.     We  may  well 
suppose  that  the  defendant  in  that  case  was  urgent  for  a  deci- 
sion, and  would   admit  of  no  unreasonable  delay.     If  it  be 
charged  that  the  complainant  procrastinated  it,  or  the  trustees, 
it  is  apprehended  that  the  record  would  show  to  the  contrary, 
if  it  were  necessary.     It  is  not  necessary,  because  no  such 
charge  is  made  in  the  bill;  and  the  trustees  are  not  chargeable 
with  any  breach  of  trust  not  charged   in  the  bill.     Smith  vs. 
Smith,  4  Johns.  Ch.  Rep.  281.     After  the  decree  of  the  court 
of  chancery  the  defendant  appealed,  and  the  decree  of  this 
court,  affirming  the  decree,  was  passed  at  June  term  1821.    We 
think  that  while  this  case  was  pending  the  trustees  were  not  au- 
thorised to  invest  any  of  the  monies  in  their  hands.     We  do 
not  mean  by  this  to  say,  that  a  disputed  claim  of  a  few  hun- 
dred dollars  would  have  justified  the  trustees  in  refusing  to 
invest  many  thousands,  or  that  this  suit  gave  them  a  right 
io  retain  in  their  hands  more  than  was  sufficient  to   pay  the 
debt,  interest,  costs,  and   all   reasonable   expenses.      It   can- 
not be   contended   that  the   trustees  were   bound   to    know 
what  would  be  the  fate  of  the  suit  against  Maund.     They 
were  utter  strangers  to  the  contract,  and  the  subject  matter 
of  it.    They  could  not  tell  what  would  appear  in  proof.    They 
could  only  know  with  certainty  that  judgments  for  large  sums 
of  money  had  been  obtained  at  law  against   T.  Ringgold',  that 
these  judgments  were  a  lien  upon  the  whole  of  the  real  estate 
which  had  been  conveyed  to  them  in  trust,  which  they  had 
sold,  and  for  which  they  had  received  the  purchase  money. 


OF  MARYLAND,  43 


UlNGGOLII    V.    KlNOGOLI). 1826. 


That  while  Ihe  case  was  pending  in  chancery,  the  injunction 
might  at  any  time  be  dissolved;  and  unless  the  money  be  inT- 
mediately  paid,  the  creditor  could  issue  out  his  executions,  and 
levy  them  upon  the  property  sold,  as  well  as  the  property  of 
the  securities  in  the  appeal  bonds.  The  issue  of  the  suit  in 
chancery  being  doubtful,  the  period  of  its  decision  equally  soy 
whence  the  right  of  these  trustees  to  make  any  investment  of 
the  funds,  which  by  the  express  terms  of  the  deed  of  trust 
were  to  be  applied  in  the  first  place,  and  before  any  invest- 
ment, to  the  payment  of  the  debts  then  due,  and  of  course 
Maund's,  unless  chancery  would  grant  a  perpetual  injunction? 
Will  it  be  said  that  the  court  of  chancery  could  have  autho- 
rised it?  Can  any  man,  by  executing  a  deed  of  trust,  though 
for  the  benefit  of  creditors,  destroy  a  lien  which  an  individual 
creditor  had  upon  his  property,  and  oblige  him  to  acquiesce  in 
the  sale  of  that  property,  and  wait  for  his  money  until  the 
trustee  can  sell  out  stock,  which  he  has  purchased?  Suppose 
in  this  individual  case  that  the  money  had  been  invested, 
wb.etb.2r  by  or  without  the  authority  of  the  chancellor,  and 
that  the  injunction  being  dissolved,  the  creditor  had  proceeded 
to  levy  upon  the  land;  would  the  chancellor  have  granted 
another  injunction  to  stay  the  sale  until  the  money  invested 
could  be  converted  into  money?  If  the  trustees  were  bound 
or  at  liberty  to  invest,  then  they  were  to  invest  according  to 
the  deed,  which  authorised  an  investment  in  road  stock, 
stock  of  the  City  Bank  of  Baltimore,  or  other  bank  stock  f 
and  what  might  have  been  the  value  of  such  investment  we 
ran  easily  ascertain.  It  was  their  duty,  so  it  is  argued,  to  in- 
vest; and  if  so,  as  they  were  authorised,  they  possibly  might 
have  invested  in  some  of  these  funds  which  have  so  much  de- 
preciated in  value.  And  if  they  had  so  invested,  even  by  the 
mere  express  authority  of  the  chancellor,  and  a  decree  had  af- 
terwards been  pronounced  in  favour  of  Maund,  will  any  man 
say  they  could  have  excused  themselves  for  fche  loss  of  the 
funds,  by  alleging  that  they  had  invested  the  funds  in  stock 
now  worth  little  or  nothing,  and  therefore  must  be  excused 
from  the  payment  of  the  claims?  Would  they  not  have  been 
charged  with  a  breach  of  trust  in  investing  without  any  autho- 
rity to  be  found  in  the  deed,  funds  which  belonged  to  a  credi- 


44  CASES  IN  THE  COURT  OF  APPEALS 

RlNGGOLD  V   RlNGGOLD. 1826. 

tor?  Who  will  affirm  that  the  court  of  chancery,  even  after 
expressly  authorising  the  investment,  could  have  shown  any 
mercy  to  the  trustees?  A  trustee  may  be  compelled  to  pay 
interest — in  some  cases  compound  interest.  But  in  what  cases? 
Where  the  trustee  makes  profits,  and  will  not  render  an  ac- 
count of  them.  Evertsonvs.  Tappen,  5  Johns.  Ch.  Rep.  517. 
Where  the  deed  creating  the  trust  directs  investments  of  the 
interest,  and  this  is  not  done,  compound  interest  is  charged. 
Baphaelvs.  Boehm,  11  Ves.  92.  S  C.  13  Ves.  407,411.  And 
this  because  such  is  the  law  created  with  the  trust.  Darne  fy 
Gassaway  vs.  Catleft,  G  Harr.  $•  Johns.  475.  The  judg- 
ments obtained  by  Maund  might  be  considered,  until  the  year 
this  court  decided  the  case,  a  claim  existing  against  T.  Ring- 
gold,  and  possibly  to  be  paid  out  of  the  trust  fund.  In  sup- 
port of  the  position  that  interest  is  not  to  be  charged  pending 
that  suit,  it  is  only  necessary  to  refer  to  the  case  of  Newton  vs. 
Bennett,  1  Bro.  Ch.  Rep.  359.  There  the  true  principle, 
by  which  courts  are  to  be  governed,  is  laid  down.  In  that 
case  it  will  be  found  that  Bennett  did  not  take  necessary  steps 
to  settle  the  estate.  He  retained  money  in  his  hands  for  se- 
veral years.  In  1760,  the  claim  against  the  estate  was  com- 
promised. "Till  then,  (says  the  chancellor,)  it  does  not  ap- 
pear that  Bennett  kept  the  money  in  his  hands  without  a 
cause,  there  being  an  outstanding  demand."  While  there  was 
a  cause  for  keeping  the  money  in  his  hands,  while  there  was 
an  outstanding  claim,  the  chancellor  at  once  decides  that  he  is 
not  to  pay  interest.  "From  1760  the  question  is,  whether  he 
shall  pay  interest,  having  applied  the  money  in  the  course  of 
his  trade."  And  from  1760  he  was  ordered  to  pay  interest. 
According  to  this  decision,  while  the  demand  of  Maund  was 
Outstanding,  the  trustees  did  not  retain  the  money  in  their 
hands  without  cause,  and  they  are  not  to  be  charged  with  in- 
terest. It  may  be  cited  to  prove  that  the  complainants  are  en- 
titled to  interest  from  the  decision  of  this  court  in  Maund's 
case,  as  the  trustees  did  not  then  invest;  but  the  answer  to 
this  is,  that  before  that  decision,  T.  Ringgold  was  dead — 
the  new  bill  had  been  filed,  and  the  administratrix,  and  all  per- 
sons having  any  claim  to  the  estate,  filed  another  bill,  claiming 
the  estate  as  it  was,  and  insisting,  not  that  it  should  be  invest- 


OF  MARYLAND.  45 


».     KlNGGOLI). 1826. 


ed,  but  that  it  should  be  delivered  up  to  them.  From  that 
time  the  trustees  did  not  resist  the  claim,  but  consented  that 
an  account  should  be  taken,  and  the  trust  settled  up.  On  this 
point  they  referred  also  to  Littlehales  vs.  Gascoyne,  3  Bro. 
Ch.  Rep.  73.  Franklin  vs.  Frith,  Ib.  433.  Tew  vs.  Earl  of 
Win /erf  on,  1  Fes.  jr.  450,  451.  Pybus  vs.  Smith,  Ib.  193. 
Jlrnere  zw.  Pemberton,  12  Ves.  385.  Lang  ford  vs.  Gascoyne, 
11  Ves.  333.  Rocke  vs.  Hart,  Ib.  59,  60.  The  mere  act  of 
co-operation  docs  not  charge  a  co-trustee  with  interest.  Bacon 
».«.?.  Bacon,  5  Ves.  331.  Chambers  vs.  Minchin.  7  Ves.  192. 
Longford  vs.  Gascoyne,  11  Ves.  334.  Shipbrook  vs.  Hin- 
ehinbrook,  16  Ves.  478.  Brice.  vs.  Stokes,  11  Ves.  324. 

4.  On  the  fourth  point.  In  England  a  per  diem  is  al- 
lowed to  trustees  for  their  trouble,  &c.  but  that  is  not  the  rule 
here.  The  practice  in  our  court  of  chancery  is  to  allow  a  cer- 
tain sum  of  money  by  way  of  commission.  In  the  execution 
of  this  trust,  the  trHstees  have  had  a  great  deal  of  trouble,  and 
the  compensation  to  be  allowed  to  them  does  not  come  within 
the  rule  as  now  established  in  chancery. 

Berrien,  Hoffman,  and  Mayer,  for  the  Appellees,  in  the 
first  appeal,  on  the  first ,  second ,  third  And  fourth  points. 

1.  On  the  first  point.  The  alleged  exchange  of  Hopewell 
for  the  ferry  property,  was  dehors  the  powers  of  the  trust, 
and  wholly  illegal.  1.  This  was  no  technical  exchange,  even 
had  the  trustees  possessed  the  power  to  exchange.  Shep.  T. 
295.  Co.  Litt.  31,  s.  319.  If  this  transaction  rested  only 
on  the  deed  of  1798,  Mrs.  Ringgold  would  have  dower  in  the 
ferry  property,  as  well  as  in  Hopewell.  Cass  vs.  Thompson, 

1  New  Hamp.  Rep.  65.     2.  The  sale  or  exchange   was  too 
hasty.    Ex  parte  Bennett,  10  Ves.  393.   Hart  vs.  Ten  Eyckt 

2  Johns.  Ch.  Rep.  110.     3.  The  ferries  were  not  trust  estate. 
Tafford  vs.  Boehm,   3   J2tk.  440.     A  trustee  cannot,  even 
without  mala  fides,  invest  in  a  fund  not  sanctioned  by  a  court 
of  equity.     If  the  court  does  not  adopt  the  fund,  the  trustee 
must  bear  the  loss.     Hancon  vs.  Jlllen,  2  Dick.  498.    A  trus- 
tee, guardian,  &c.  cannot,  without  special  power,  change  the 
nature  of  the  estate  from  money  into  land,  or  e  converse;  or  a 
lease  for  years  into  a  freehold.     Witter  vs.  Witter,  3  P. 


46  CASES  IN  THE  COURT  OF  APPEALS 

RlNGGOLI)  V.  RlNGCOLH. 1826. 

100,  (and  notes.)  Terry  vs.  Terry,  Pre.  in  Chan.  273.  Ma- 
son vs.  Day,  Ibid  319.  Pierson  vs.  Shore,  1  Ath.  4SO.  Rook 
vs.  Warth,  1  Ves.  461.  Dudley  vs.  Dudley,  1  Dick-  16,45. 

1  Ves.  jr.  35.     6  Ves.  487.     4.  The  value  of  Hopewell  must 
be  fixed  at  $20  per  acre.     When  a  trustee  displaces,  destroys, 
or  unduly  converts  trust  property,  chancery  will  give  to  the 
cestui  que  trust  the  extreme  value  of  it,  analogous  to  the  rule 
of  law  of  giving,  in  trover,  the  highest  value,  unless  the  arti- 
cle be  shown  to  be  certainly  of  less  value.     *ftmory  vs.  Dela- 
miere,  1  Stra.  505.     As  the  trustees  declined  to  ascertain  its 
value  by  several  offers,  and  have  thereby  rendered  it  extremely 
difficult  to  say  what  it  was  really  worth;    as  it  might  have 
brought  at  some  subsequent  period,  even  $30  per  acre,  the 
complainants  are  entitled  to  the  highest  value,  even  on  the 
principle  of  confusion,  mixture,  &c.  of  trust,  with  private  es- 
tate, as  settled  in  Lupton  vs.  White,  15  Ves.  439,  440.      At- 
torney General  vs.  Fullerton,  2  Ves.  fy  JBea.  263.  Earl  Pow- 
let  vs.  Herbert,  1    Ves.  296.     Forrest  vs.  Elwes,  4  Ves.  491, 
497.    Pocock  vs.  Reddington,  5  Ves.  794.   Harrison  vs.  Har- 
rison, 2  Jltlc.  121.     Hart  vs.  Ten  Eyck,2  Johns.  Ch.  Rep. 
62,  116,  117.     5.  None  of  the  expenditures  on  the  ferries  can 
charge  the  trust  estate.     Bostock  vs.  Blakeney,  2   Bro.  Ch. 
Rep.  653,  656.     Green  vs.  Winter,  1  Johns.  Ch.  Rep.  27,  39. 
6.   Wherever  the  trust  is  violated,  the  cestui  que  trust  is  enti- 
tled to  all  the  gain,  if  there  be  any,  and  an  exemption  from 
loss,    if  there  be  any.     Jldye  vs.  Fenilletean,  1  Cox,  60,  63, 
and  the  authorities  before  cited. 

The  trustees  are  not  entitled  to  any  benefit  from  Thomas 
Ringgold's  sanction  or  approbation  of  the  conduct  and  ac- 
counts of  the  trustees;  that  independently  of  various  known 
principles,  flowing  from  the  relation  of  trustee  and  cestui  que 
trust,  he  was,  in  fact,  incompetent  so  to  do,  from  the  infirmity 
of  his  mind,  which  rendered  him  non  sui  juris,  and  which 
was  the  very  causa  et  origo  of  the  trust.  Neither  to  the  whole 
amount,  nor  any  part  thereof,  can  Thomas  Ringgold's  sanc- 
tion protect  the  defendants  from  legal  scrutiny,  and  liability  to 
make  full  redress.  1  Pothier  on  Oblig.  29,  30.  Newl.  on 
Cont.  362,  433,  445,  451,  459.  Portington  vs.  Eglington. 

2  Vern.  189.  Sugd.401.  Gibson  vs.  Geyes,  6  Ves.  226.  Hu- 


OF  MARYLAND.  47 

HlXOGOLI)  V.  RlNGGOLD. 1826. 

g-uenin  vs.  Baseley,  14  Ves.  273.  Villars  vs.  Beaumont,  1 
Vern.  100.  Smith  vs.  French,  2  Atk.  243.  Newman  vs. 
Payne,  2  Ves.  199.  Duke  of  Hamilton  vs.  Lord  Mohun,  1 
P.  Wms.  118.  3  Wood.  Lect.  453.  Wells  vs.  Middleton,  1 
Cox,  112.  Morse  vs.  Roy  all,  12  Pes.  374.  4  Desauss.  704. 
Stanhope  vs.  Topp,  2  Bro.  Ch.  Rep.  183.  Murray  vs.  Pal- 
mer, 2  Scho.  fy  Lef.  474.  Matthews  vs.  Dragaud,  3  Desauss. 
35,  26,  27.  Grem  «w.  Winter,  1  «70Ans.  CA.  j?e/;.  35,  36. 
Wendell  vs.  Van  Renssellaer,  Ibid  344.  They  then  argued, 
that  the  liability  of  the  trustees  as  to  Hopewell,  was  to  be  deter- 
mined under  the  terms  of  the  deed  of  trust  of  December  1807; 
but  that,  if  that  deed  was  not  to  be  the  rule  of  their  responsi- 
bility, then  that  even  under  the  deed  of  1798,  Thomas  Ring- 
gold  had  no  power  left  of  disposing  of  Hopewell,  or  sanction- 
ing the  exchange  of  it  for  the  Ferries;  and  to  maintain  this  po- 
sition, they  discussed  the  limitations  of  the  deed  of  1798,  in  re- 
ference to  the  quantity  of  estate  under  it  in  Thomas  Ring- 
gold,  and  the  principles  of  the  rule  in  Shelly's  case. 

They  argued,  that  there  was  no  fund  whatsoever  in  the  hands 
of  the  trustees,  of  which  Thomas  Ringgold  had  any  control, 
and  to  which  his  sanctions  were  applicable;  that  the  bonds  and 
securities  derived  from  Benjamin  Ringgold's  trust  adminis- 
tration, were  comprehended  under  the  term  of  equitable  estate 
in  the  deed  of  1798 — but  that  at  all  events  those  securities  were 
realized  long  before  the  sanctions  of  Thomas  were  given,  and 
the  avails  applied  or  applicable  to  payment  of  Thomas's  debts, 
so  that  there  was  no  control  in  Thomas,  over  these  funds,  at 
the  time  of  his  sanctioning  the  accounts  of  the  trustees;  and 
even  to  the  extent  of  those  avails.,  the  sanctions  could  not  have 
any  effect.  That  in  this  view,  it  did  not  matter,  whether  the 
securities  for  the  sales  of  Thomas's  land,  that  came  into  the 
hands  of  the  trustees  from  Benjamin,  passed  them  under  the 
deed  of  trust  of  1798. 

They  also  argued,  that  the  personal  estate  on  Hopewell,  and 
Hunting  field,  was  to  be  deemed  as  sold  under  the  deed  of  De- 
cember 1807,  as  to  the  liability  of  the  trustees;  and  even  if 
that  were  not  so,  the  trustees  were  to  be  held  liable  for  it  in 
consequence  of  their  admissions  respecting  it,  and  blending  it 
with  their  accounts  of  assets  and  payments,  as  trustees. 


48        CASES  IX  THE  COURT  OF  APPEALS 

RlSfOGOLD    V.     KlNGOOLJ). 1826. 

2.  On  the  second  point.  The  trustees  are  jointly,  as  well 
as  severally  responsible  for  all  monies,  property,  fyc.  received 
by  them,  or  either  of  them.  And  if  not  so  a  priori,  yet  they 
.have  become  so  from  the  circumstances  attending  their  admi- 
nistration of  the  trust.  The  distinction  between  executors  and 
trustees,  in  regard  to  their  responsibility  in  solido,  is  fully  ad- 
mitted; but  the  law  has  too  firmly  settled  and  denned  the 
principle  of  the  joint  liability  of  trustees,  to  admit  of  its 
being  at  all  affected,  by  the  well  known  distinction  between 
executors  and  trustees.  But  admitting  its  fullest  force,  it  has 
no  application  whatever  to  trustees,  except  where  the  conduct 
of  the  trustee,  claiming  an  exemption,  has  been  strictly  within 
the  bounds  of  his  trust  duty,  and  where  the  delinquent  trustee 
was  in  no  way  facilitated  by  the  acts  or  omissions  of  his  com- 
panion. This  principle  will  be  found  to  pervade  all  the  autho- 
rities, and  to  afford  the  true  key  which  ascertains  the  liability 
in  solido  of  trustees,  and  is  a  principle  wholly  independent 
of  the  one  which  ordinarily  implicates  executors,  and  exempts 
trustees.  The  received  law  on  the  subject  is,  that  trustees 
and  executors,  prima  facie,  are  equally  responsible,  virtute 
officii,  for  all  monies,  &c.  received  on  account  of  the  trustee 
ship  or  administration.  But  where,  in  point  of  fact,  only 
one  has  received  money,  &c.  there  is  generally  a  difference 
between  executors  and  trustees  as  to  the  evidence  which  impli- 
cates them  in  solido.  For  executors  need  not  join  in  any  re- 
ceipt, or  conveyance;  they  are  competent  to  act  separatim. 
Trustees,  on  the  contrary,  are  expected  to  unite  in  receipts, 
and  must  join  in  conveyances.  Hence,  if  executors  unite, 
they  are  both  liable  at  law,  though  one  only  may  have  receiv- 
ed the  money.  At  law,  there  is  a  presumptio  juris  et  de 
jure,  that  they  both  received  it,  and  therefore  both  liable;  but 
in  equity,  the  facts  may  be  inquired  into,  and  they  be  charged 
jointly  or  severally,  according  to  circumstances.  A  joint  re- 
ceipt or  conveyance,  however,  even  in  equity,  raises  a  strong 
presumption  against  both,  be  they  executors  or  trustees;  but 
even  in  the  case  of  executors,  it  is  not  conclusive  in  equity. 
Trustees,  on  the  other  hand,  do  not  at  law,  or  in  equity,  ma- 
terially increase  the  presumption  of  joint  responsibility  by 
uniting  in  receipts,  because  they  are  expected  so  to  do,  even 


OF  MARYLAND.  49 


v.   Hi  NO  WOLD. — 1826. 


when,  in  fact,  they  do  not  jointly  receive  the  money.  As 
the  doctrine  has  been  modelled,  and  fully  established,  there 
appears  to  be  little  or  no  distinction  in  equity  between  trustees 
and  executors.  The  distinction  between  executors  and  trus- 
tees, in  this  respect,  never  did  extend  further  than  as  it  was  a 
mere  question  of  evidence,  arising  from  their  jointly  receipt- 
ing. The  inquiry,  now,  in  either  case,  is  not  so  much  in  re- 
lation to  joint  receipts,  &c.  as  it  is  into  the  various  acts  of 
co-operation,  omission,  undue  confidence,  and  untrustworthy 
conduct  on  the  part  of  that  trustee,  or  executor,  who  claims  au 
exemption.  If,  therefore,  a  trustee  or  executor,  by  any  act, 
omission,  supine  negligence,  or  undue  confidence,  abandons 
any  portion  of  the  fiduciary  estate  to  his  companion,  so  as  to 
tend  to  its  jeopardy  or  final  loss,  this  per  se  is  a  breach  of 
trust,  and  subjects  such  trustee  or  executor  to  all  losses  conse- 
quent on  such  crassa  negligentia,  without  any  regard  to  acts 
of  direct  co-operation,  such  as  receipts,  conveyances,  &.c.  &.C.; 
and  all  the  modern  authorities  have  uniformly  charged  trus- 
tees, in  solido,  under  the  auspices  of  this  principle.  But  we 
fully  admit,  that  if  one  trustee,  ex  mero  motu,  and  without  the 
concurrence  or  neglect  of  his  companion,  secures  and  wastes 
a  portion  of  the  trust  fund,  the  innocent  trustee  is  not  respon- 
sible for  his  defalcations,  and  this  too,  even  though  there  has 
been  joint  receipts  and  joint  conveyances.  This  case  may  be 
safely  reposed  on  this  liberal  view  of  the  doctrine  of  joint  and 
several  liability.  No  case  can  be  found  which  exempts  a  trus- 
tee, merely  because  he  received  no  portion  of  the  wasted 
estate.  Both  law  and  equity  requires  a  further  scrutiny,  and 
the  received  doctrine  is,  that  the  only  important  inquiry  is, 
whether  the  companion  who  wasted  the  estate  was  in  an// 
degree  facilitated  therein  by  Ike  acts  or  omissions  of  the 
other;  if  so,  they  are  both  equally  liable.  All  the  authori- 
ties now  concur  xhat  the  inquiry  is  not  as  to  the  evidence  of 
the  existence,  or  non-existence  of  joint  receipts  or  convey- 
ances— this  being  a  mere  prima  facie  evidence  of  responsi- 
bility in  solido;  but  the  fact  to  be  ascertained  is,  whether  one 
trustee  has  suffered  another  to  obtain  such  an  exclusive  control, 
as  enabled  that  trustee  to  violate  the  trust.  In  such  case,  they 
are  both  liable,  one  as  the  receiver  and  destroyer  of  the  trust 
VOL.  1  7 


50        CASES  IN  THE  COURT  OF  APPEALS 

RlNGGOLD  V   RlNGGOLD. 1826. 

estate,  the  other  as  the  passive  means  of  the  mischief  which 
has  been  done.  Hence,  if  a  trustee  joins  in  receipts,  &c.  he 
may  still  be  exempted;  and  if  he  does  not  join,  he  may  still 
be  charged.  The  nature  of  the  trust  also  is  very  material  to 
be  inquired  into.  Whenever  the  trust  is  directory,  and  not 
discretionary,  they  are  bound  to  see  to  each  other's  acts.  The 
counsel  for  respondents  were  ever  willing  to  lose  sight  of  this 
important  principle.  The  trustees  were  expressly  bound  to 
invest,  and  in  specific  funds;  they  jointly  invested  in  dif- 
ferent funds,  and  also  jointly  omitted  to  invest  the  balance  in 
any  fund.  Negligence,  and  a  non- performance  of  prescribed 
duties,  is  the  controlling  circumstance  which  ascertains  the 
liability  in  solido.  Trustees  are  always  liable,  in  solido,  for 
the  acts  of  agents,  if  they  are  not  expressly  authorised  to  ap- 
point agents.  If,  therefore,  Samuel  constituted  Thomas  his 
agent,  as  he  says  he  did  in  the  M'Mechen  transaction,  or  if  he 
permitted  Tench  to  assume  an  exclusive  control  of  any  por- 
tion of  the  estate,  he  thereby  constituted  him  an  agent,  and 
both  are  responsible  in  these  cases,  for  any  losses  that  may 
arise.  Samuel  never  was  in  advance,  except  by  reason  of  his 
own  gross  negligence  in  permitting  Tench  to  violate  every 
principle  of  the  trust;  and  after  the  mischief  was  done,  Samuel, 
conscious  of  his  neglects,  omissions,  and  untrustworthy  acts, 
and  that  he  must  respond  for  Tench,  received  from  him  an 
ample  indemnity.  But  if  the  facts  of  the  case  be  inquired 
into,  the  question  of  joint  and  several  responsibility,  even  if 
decided  in  favour  of  the  respondents,  would  cover  but  a  small 
part  of  the  case — because  there  are  but  very  few  transactions 
in  which  they  did  not  unite,  and  positively  participate, 
which  would  render  them  responsible  even  on  the  most  fa- 
vourable application  to  the  respondents,  of  the  doctrine  in 
controversy — so  that  quacunque  via  data,  they  are  liable  in, 
solido.  But  the  law  is  now  fully  settled.  In  all  of  the  cases, 
when  cautiously  examined,  from  the  case  of  Townley  vs, 
Chalenor,  Cro.  Car.  3l2,downtoMonellvs.  Monell,5Johns, 
Ch.  Rep.  283,  it  will  be  found  that  the  courts  have  been  gra- 
dually advancing  to  the  positions  we  have  laid  down;  and  the 
many  moot  points  of  distinction  between  joining  and  not  join- 
ing in  receipts,  &c.  between  the  liability  at  law,  or  in  equity; 


OF  MARYLAND.  51 


RlNOGOLI)  V.  RlNGCOLD. 1826. 


between  the  responsibility  in  solido  of  executors,  and  not  of 
trustees;  between  the  claims  of  creditors  on  executors,  or  lega- 
tees on  executors,  &c.  &c.  have  allj  in  succession,  been  nearly 
abandoned,  and  the  plain,  elementary  doctrine  of  all  courts 
now  is,  that  they  will  look  to  the  conduct  both  of  trustees 
and  executors,  and  if  the.  loss  be  the  fault  entirely  of  one, 
he  alone  shall  respond;  but  if  it  be  the  result  of  the  acts, 
omissions,  gross  negligence  of  the  other,  they  shall  both 
equally  respond.  It  never  was  decided,  that  if  one  only 
reaps  the  fruits,  or  receives  the  money,  after  a  joint  breach  of 
trust,  both  shall  not  respond;  but  the  true  distinction  is  as  just 
stated,  viz:  that  wherever  any  one,  acting  in  a  fiduciary  rela- 
tion, permits  his  companion  to  exercise  any  control  over  the 
trust  fund,  inconsistent  with  the  obligations  of  both,  (and 
whether  there  be  an  agreement  to  that  effect,  or  a  mere  supine 
negligence,  is  immaterial,)  they  both  are  liable  in  solido*. 
Hence,  the  fact  of  receipting  jointly  is  a  mere  item  of  evi- 
dence, even  in  the  case  of  executors,  and  the  main  inquiry  is 
not  even  who  received  the  money,  but  whether  there  has  been 
any  acquiescence  in  one,  after  he  knew,  or  ought  to  have 
known,  that  the  trust  money,  &c.  had  got  into  a  course  of 
abuse."  Nor  is  it  at  all  requisite,  in  order  to  charge  both  for 
the  defalcations  of  one,  that  there  should  be  any  fraud,  sinister 
motive,  or  profit  in  the  trustee  who  claims  exemption. 

Admitting  then  the  fullest  force  of  the  general  distinction 
between  co-executors,  and  co-trustees,  the  whole  current  of  au- 
thorities sustain  the  positions  advanced.  They  then  cited 
Churchill  vs.  Hobson,  1  Salk.  318.  S.  C.  1  P.  Wins.  241, 
(and  note.)  Townley  vs.  Calenor,  Cro.  Car.  312.  S.  C. 
Bridg.  Rep.  35.  Felloives  vs.  Mitchell  £,-  Owen,  1  P.  Wms. 
81.  S.  C.  2  Fern.  504,  515.  21  Vin.  rfb.  583,  pi.  2,  8,  Mur- 
rill  vs.  Cox  4*  Pitt,  2  Vern.  570.  Westley  vs.  Clarke,  1 
Eden's  Rep.  356;  and  1  P.  Wms.  83,  (note.}  S.  C.  I  Dick. 
329.  Townsend  vs.  Barber,  1  Dick.  356.  Leigh  vs.  Barry,  3 
Atk.  583.  Gill  vs.  Attorney  General,  Hrtrdres,3l4.  Charita- 
ble Corporation  vs.  Sutton,  2  */2tk.  404,  405,  406.  Boardman 
vs.  Mosman,  1  Bro.  Ch.  Rep.  68.  Sadler  vs.  Ilobbs,  2  Bro. 
Ch.  Rep.  116.  Scurfield  vs.  Howes,  3  Bro.  Ch.  Rep.  90.  Kee- 
blevs.  Thompson,  Ib.  112.  Baldren  vs.  Scott,  2  Ves.  678. 


52        CASES  IX  THE  COURT  OF  APPEALS 

KlNGGOLD  V.  KlNGGOLJt. 1826. 

Hovey  vs.  Blakeman,  4  Ves.  506,  603,  608.  Caffray  vs.  Dar- 
by, 6  res.  487.  Chambers  vs.  Minchin,  1  Ves.  186,  196, 1^9. 
French  vs.  Hobson,  9  Ves.  103.  Lord  Shipbrook  vs.  Lord 
Hinchinbrook,  11  Ves.  252.  S.  C.  16  Ves.  476.  Price  vs. 
Stokes,  11  Fes.  318,  319.  Longford  vs.  Gascoignc,  Ib.  333. 
*ftftzz>  tw.  Sfltftt;,  1  tfc/i.  #  Z.e/.  340.  Doyle  vs.  Blake,  2  Sc/i. 
&  Lef.  229,  237,  242.  Townshend  vs.  Baber,  1  Dick.  156, 
356.  S.  C.  Bridg.  Rep.  38.  Underwood  vs.  Stevens,  1  Meriv. 
712.  Westley  vs.  Clarke,  1  JEJrfen,  357.  Anonymous,  12  7I/o</. 
560.  21  Vin.  M.  525,  pi.  2,  3,  4.  2  jFbraW.  182,  fm?/*  /,) 
183.  1  Cruse's  Dig.  tit.  12,  s.  36,  37,  39.  2  /?rzW.  //*</.  651. 
s.  214,  221,  224,  238,  239,242.  Hum.  Dig.  643,  297,  298, 
(s)  (d)  (u).  Toller's  L.  Ex.  485,  486.  Monell  vs.  Monell,  5 
Johns.  Ch.  Rep.  283.  11  Johns.  Rep.  21.  Mnnford  vs.  Mur- 
ray, 6  Johns.  Ch.  Rep.  1,  452.  Lenoir  vs.  Winn,  4  Desauss. 
65,  76.  6  Mod.  93.  2  .%.  Ca.  i#6.  742.  12  Mod.  573.  5  Ves. 
839.  8  F<w.  363. 

3.  On  the  third  point  they  cited  Franklin  vs.  Frith,  3  Z?ro. 
C/i.  7?ej7.  433.      2  Fonbl.      Newton  vs.  Bennet,  1  ^ro.  f'A. 
jRe/?.  359.      Treves  vs.  Townsend,  Ib.  384.    Foster  vs.  Foster. 
2  Bro.  Ch.  Rep.  616. 

4.  On  the  fourth  point  they  cited  Fearns  vs.  Young,  10 
Ves.  184. 

JBerricn.  Iloffman,  and   Mayer,  for  the  Appellants,  in  the 
second  appeal,  on  the  fifth,  sixth,  seventh  and  eighth  points. 

5.  On   the  fifth  point.      The  auditor  in   his  report  esteem? 
the  answers,  as  to  all  matters  of  account,  as  of  themselves  final 
proof,  and  that  as  to  such   matters  the  answers  are  simply  re- 
sponsive, and   not,  in  any  measure,  in  avoidance.     To  enforce 
this  singular  doctrine,  he  also  relies  on  the  difficulty  of  the  trus- 
tees getting  proof,  or  producing  vouchers  after  such  a  lapse  of 
time.     The  chancellor  also  adopts  this  reasoning,  and  appears 
to  have  entirely  misapprehended  some  of  the  clearest  authori- 
ties on  this   point.     The  complainants  fully  admit  the  general 
rule  that  an  answer  is  per  se  proof,  and  requires  counter  evi- 
dence of  at  least  one  witness  and  pregnant  circumstances,  but 
contend  that  this  rule  has  no  application  whatever  to  the  pre- 
sent case,     The  positions  taken  by  the  complainants  are  these: 


OF  MARYLAND.  53 


KlWOGOLD  V.  KlNGOOLP. 1826. 


1.  That  they  have  never  relied,  in  any  degree  whatever,  on  in- 
formation furnished  by  the  answers,  but  on  the  contrary,  have 
proved,  by  independent  testimony,  the  entire  amount  with 
which  they  charge  the  defendants.  2.  That  the  disbursements 
by  the  trustees  are  in  all  instances,  except  such  items  as  postage, 
current  expenses,  and  such  like,  to  be  sustained  by  proof,  or 
vouchers;  and  that  the  answers,  setting  forth  disbursements, 
are  not  responsive  merely,  but  in  avoidance,  and  set  up  claims, 
which  must  be  sustained  by  proof;  and  no  authority  can  be 
found  which  gives  to  an  ansxver  any  operation  beyond  this.  3, 
That  no  court  will  allow  respondents  to  rely  at  all  upon  an- 
swers, which  come  reluctantly  in,  after  all  the  proofs  are  fur- 
nished by  the  complainants,  and  they  have  been  driven  to  the 
necessity  of  searching  every  where  for  evidence,  without  the 
least  reliance  on  any  light  shed  by  the  answers.  4.  That  where 
a  distinct  fact  is  set  forth  in  the  bill,  and  denied  by  the  answer, 
or  where  information  on  a  particular  subject  is  requested  by 
the  bill,  and  furnished  by  the  answer,  then  the  answer  is  evi- 
dence; but  a  bill  which  merely  asks  for  an  account,  is  not  of 
that  nature  which  enables  the  respondents  to  make  proofs  for 
themselves,  by  stating  that  so  much  was  received,  and  so  much 
paid  away.  The  books  have  never  gone  to  that  length,  and  all 
principles,  and  authorities,  we  apprehend,  sustain  a  doctrine 
just  the  reverse.  5.  The  utmost  liberality  has  been  manifested 
by  the  complainants,  in  writing  "admitted"  on  every  fair 
and  comprehensible  voucher:  and  this  was  asked  for  by  the  re- 
spondents, and  granted  by  the  complainants  under  the  idea  that 
the  answers  proved  nothing,  and  that  all  accounts  not  thus  ad- 
mitted, or  proved  by  the  respondents,  were  not  fortified  by 
the  answers.  6.  The  cases  which  admit  a  defendant's  answer 
as  prool  for  him,  are  always  where  some  fact  alleged  by  the 
bill  is  denied;  and  there  is  a  clear  distinction  between  denial 
and  affirmation,  setting  up  a  claim, and  swearing  himself  into 
a  right;  so  also  these  cases  distinguish  between  matters  sus- 
ceptible of  proof,  and  such  as  lie,  irom  their  nature,  within 
the  knowledge  and  conscience  of  the  respondent.  7.  It  is  also 
to  be  borne  in  mind,  that  in  many  of  the  cases  which  allow  this 
iorce  to  the  answers  of  defendants,  the  parties  were  examined 
as  witnesses  on  interrogatories  before  the  master,  a  proceeding 


54       CASES  IN  THE  COURT  OF  APPEALS 

KlITGOOLD    V.    RlHGBOLI). 1826. 

unknown  to  our  practice.  Such  was  the  case  of  Kirkpatrick 
vs.  Love,  tflmbler,  589,  and  many  others.  8.  We  are  also  to 
distinguish  between  reading  an  answer  in  chancery,  in  another 
suit,  or  in  a  suit  at  law;  and  where  it  is  read  in  equity,  in  the 
same  suit — there  the  established  doctrine  is,  that  one  part  of 
an  answer  may  be  read  against  the  party,  without  reading  the 
other,  and  the  complainant  may  select  a  particular  admission 
and  rely  on  it,  and  yet  put  the  defendant  to  prove  other  facts; 
and  the  whole  current  of  authorities  sustain  this.  Norris' 
Peake's  Evid.  86,  (note.)  Hart  vs.  Ten  Eyck,  2  Johns. 
Ch.  Rep.  88,  89.  2  Poth.  on  Obi.  153  to  158,  (and  note.J 
9.  But  even  if  the  doctrine  be  enlarged  for  the  benefit  of  the 
respondent,  it  never  applies  except  where  the  answer  is  clear, 
satisfactory,  and  pointed;  it  never  embraces  general  statements, 
schedules,  &c.  which  do  not  fix  the  force  of  the  oath  pointedly 
on  the  particular  transaction.  In  this  point  of  view,  Samuel's 
answer  has  no  application  to  the  M'Mechen,  Wilmer's,  and 
other  transactions;  nor  can  Tench's  answer  fortify  Samuel's 
alleged  disbursements.  They  cited  rflam  vs.  Jour  dan,  1 
Vern.  161.  Anonymous,  1  Vern.2S2.  Wickerly  vs.  Wicker- 
ly,  1  Vern.  470.  Walton  vs,  Hobbs,  2  Jltk.  19.  Janson  vs. 
Raney,  2  +Qtk.  140.  Robinson  vs.  Gumming,  2  Mk.  410. 
Only  vs.  Walker,  3  Atk.  407,  (2  Com.  Dig.  332.)  Pemba  vs. 
Mathers,  1  Bro.  Ch.  Rep.  52.  Kirkpatrick  vs.  Lore,  Am- 
bler Rep.  589.  Blount  vs.  Burrows,  4  Bro.  Ch.  Rep.  73. 
Thompson  vs.  Lamb,  7  Ves.  588.  Ridgeway  vs.  Darwin,  1 
Vfs.404.  Lady  Ormond  vs.  Hutchinson,  13  Ves.  47.  East 
India  Co.  vs.  Donald,  9  Ves.  275,  283.  The  leading  case 
which  establishes  the  sound  doctrine  on  this  subject,  and 
which  has  never  been  repudiated,  or  in  the  least  qualified, 
is  the  one  which  occurred  in  1707,  before  Lord  Cowper, 
and  is  reported  by  Gilbert  in  his  Law  of  Evidence,  45.  3 
Blk.  Com.  451.  The  chancellor,  in  his  decree,  has  passed  on 
this  case  a  most  singular  criticism,  and  one  which,  we  think, 
is  far  from  just.  We  do  not  perceive  the  least  ''ambiguity" 
in  the  case;  for  surely  it  does  not  mean  that  one  who  was  dead, 
made  a  donation;  or  that  one  who  was  alive  at  the  time,  was 
then  a  testator.  But  it  simply  means  that  the  defendant  had, 
in  the  lifetime  of  his  testator,  received  a  deposit  of  J61100,  and 


OF  MARYLAND.  55 

RIHGGOLD  v.  KI>-OGOLD. — 1826. 

that  on  a  settlement  between  him,  who  afterwards  was  a  tes- 
tator, with  him  who  afterwards  was  an  executor,  £100,  part 
of  the  £1100,  was  given  to  the  defendant  in  satisfaction  of  the 
services  he  should  subsequently  render  as  executor.  This  case 
is  commented  on,  and  entirely  approved  of  by  Chancellor 
Kent,  2  Johns.  Ch.  Rep.  88.  That  £1100  was  the  entire  sum 
deposited,  was  proved  by  the  answer,  but  the  gift  of  £100  re- 
quired proof  aliunde.  2  Sail  and  Beatty,  382;  Ham.  Dig. 
425,  (a).  1  Bro.  Ch.  Rep.  502;  2  Com.  Dig.  332;  2  Fonb. 
chap.  7,  s.  4.  An  answer  per  se,  perhaps,  should  never  be  evi- 
dence against  an  infant  cestui  que  trust.  Trustees  ought  to 
be  compelled  to  keep  books,  take,  and  preserve  vouchers:  but 
here  are  thousands  of  dollars  claimed  by  the  trustees  on  no 
voucher  whatever.*  Hart  vs.  Ten  Eyck,  2  Johns.  Ch.  Rep. 
62,  66,86  to  94,  96,  107,  119.  This  case  assembles  nearly  all 
the  English  and  American  cases,  and  the  entire  bearing  on  the 
subject.  Green  vs.  Hart,  1  Johns.  Rep.  589,  590.  Monell  vs, 
Monellj  5  Johns.  Ch.  Rep.  283,294,  Sf-c.  Parker  vs.  Kennedy, 
2  Desauss.  37.  The  State  vs.  Penman,  2  Desauss.  1.  Beck- 
with  vs.  Sutler,  1  Wash.  Rep.  225.  Sallinger  vs.  Worley, 
1  Bibb,  195.  Paynes  vs.  Coles,  1  Munf.  373.  Scur field  vs. 
Howes,  3  Bro.  Ch.  Rep.  90,  95.  Here  the  answer  of  a  co-trus- 
tee, charging  himself  exclusively,  was  not,  per  se,  considered 
as  evidence  of  the  separate  receipt,  and  liability.  Miller  vs. 
Beverleys,  4  Hen.  f?  Munf.  422.  Pollard  vs.  Lyman,  1  Day, 
165.  The  Auditor  vs.  Johnson,  1  Hen.  4*  Munf.  536.  Heff- 
ner  vs.  Miller,  2  Munf.  43.  Seatty  vs.  Thompson,  2  Hen. 
9f  Munf.  395. 

The  object  of  the  trust  was  investment,  and  all  that  inter- 
fered with  that,  or.  retarded  it,  should  be  affirmatively  and 
unquestionably  shown.  The  trust  fund  was  to  be  diminished 
as  little  as  possible;  and  therefore  the  necessity  of  the  pay- 
ments should  be  shown.  Payments  here  are  in  the  nature  of 
counter-claims,  on  the  part  of  the  trustees,  against  their  cestui 
que  trusts,  and,  therefore,  should  be  proved ;  and  on  that  head 
the  answer  could  not,  in  the  nature  of  things,  be  deemed  re- 
sponsive to  the  bill,  unless  the  bill  had  charged  specific  breaches 
in  particular  undue  payments  by  the  trustees.  They  argued 
this  was  in  effect  only  a  general  bill  for  an  account;  and 


56        CASES  IN  THE  COURT  OF  APPEALS 

RlNGGOLD  V.  HlSCGOLD. 1826. 

that  it  was  a  petitio  principii  to  say  that  the  answer  was  evi- 
dence of  the  payments  it  stated,  because  the  bill  required  "a. 
particular  account  of  the  trustees'  transactions  under  the  deeds 
of  trust." 

The  answers  of  both  of  the  trustees  being  reluctant,  un- 
candid,  unsatisfactory,  and  rendered  only  after  all  the  proofs 
were  obtained  by  the  complainants,  are  to  be  received  with 
great  caution,  and  to  be  construed  by  the  court  dubiously,  and 
with  scrutiny;  allowing  to  them  much  less  respect  and  weight 
than  might  have  been  accorded  to  them,  had  they  been  in 
time,  willing,  full,  and  candid.  Freeman  vs.  Fair  lie,  3 
Meriv.  29,41.  IVhite  vs.  Williams,  S  Fes.  193.  Haim. 
Dig.  421,  s.  5;  422,  (k,)  425,  (a.)  Greenvs.  White,  1  Johns. 
Ch.  Rep.  33, 40.  Hart  vs.  Ten  Eyck,  2  Johns,  Ch.  Rep.  62, 
107,  108.  Faulder  vs.  Stewart,  11  Fes.  303.  Smith  vs. 
Scarle,  14  Fes.  415.  2  Madd.  Ch.  343.  Hepburn  vs.  Du- 
rand,  1  Bro.  Ch.  Rep.  503.  3  Merio.  Rep.  29,  41. 

6.  On  the  sixth  point.  Interest  is  to  be  charged  on  all  re- 
ceipts from  their  dates,  as  the  trustees  never  invested,  and 
never  intended  to  invest.  That  if  a  rest  of  six  months  be 
allowed,  they  are  then  chargeable  with  compound  interest,  or 
interest  on  the  annual  balance  of  principal  and  interest. 
The  authorities  clearly  establish  the  following  positions:  1. 
Trustees,  executors,  &c.  are  chargeable  with  simple  interest 
wherever  there  were  disposable  funds  of  the  estate  in  their 
hands,  which  the  exigencies  of  the  estate  did  not  necessarily 
prevent  being  placed  at  interest  2.  If  they  be  empowered 
to  put  money  to  interest,  and  merely  let  it  remain  idle  by 
them,  they  are  responsible.  3.  If  they  have  traded  with  the 
trust  funds,  they  are  not  only  liable  to  interest,  but  to  the  pro- 
Jits,  if  any,  beyond  the  interest  4.  It  they  retain  monies 
by  them,  hesitating  what  to  do,  they  shall  pay  interest,  as  it 
was  their  duty  to  apply  to  the  court  of  chancery  for  instruc- 
tions. 5.  Whenever  the  least  in  fault,  they  are  chargeable  in 
England  with  the  highest  interest,  viz.  5  per  cent,  if  not  in 
fault,  then  with  4  per  cent. — money  being  usually  worth  no 
more  in  that  country.  6.  Wherever  their  duty  is  prescribed, 
as  for  example,  to  invest,  and  they  have  neglected  it,  but 
which,  if  performed,  would  have  given  the  cestui  yw  trust 


OF  MARYLAND. 


RIXCSOI.U  v    HiNoeoi.il. — 1826. 


jnterest  upon  interest,  the  trustees  shall  be  liable  to  compound 
interest,  or  interest  on  the  annual  balances  of  principal  and  in- 
terest. 7.  Formerly,  interest  was  allowed  only  from  the  time 
of  audit,  if  respondent  answered  freely  and  fully,  and  from  the 
Time  of  the  bill  filed,  if  reluctantly;  now,  no  such  distinc- 
tion— but  trustee  is  liable  from  the  time  he  might  have  in- 
vested. Upon  the  subject  of  simple  interest,  they  cited  10 
Mod.  21.  2  Eq.  Ca.rfbr.  740.  Parrot  vs.  Treby,  Pre.  in 
Ch.  254.  Newton  vs.  Bennet,  1  Bro.  Ch.  Rep.  35,  (and  note 
a. )  Perkins  vs.  Baynton,  1  Bro.  C.  R.  375.  Treves  vs. 
Towns/tend,  Ib.  334.  Dawson  vs.  Mussey,  1  Ball  &?  Bcatty, 
219.  Tebbsvs.  Carpenter,  1  Madd.  C.  R.  290.  Forbes  vs. 
Ross,  2  Bro.  C.  R.  430  Littlehales  vs.  Gascoyne,  3  Bro.  C. 
R.  73.  Franklin  vs.  Frith,  3  Bro.  C.  R.  433.  Hi/lard's 
case,  1  Fes.  90.  Young  vs.  Combs,  4  Fes.  103.  Forrest  vs. 
Elwes,  492.  Piet  vs.  Stacc,  4  Fes.  620,  622.  Pocock  vs.  Red- 
dington,  5  Fes.  794.  Rock  us.  Hart,  11  Fes.  57,  &.c.  Bruyere 
vs.  Pemberton,  Ib.  386.  Ratclif  vs.  Graves,  1  Fern.  196.  2 
Ver.  744.  1  P.  IV ms.  396.  High,  on  Lunacy,  77.  "The 
first  duty  of  a  trustee,  executor,  agent,  receiver,  &c.  is  to  be 
constantly  ready  with  his  accounts,  and  neglect  in  this,  charges 
them  with  interest."  Heathest  vs.  Hulme,  1  Jac.  S?  Walk. 
122,  135.  Massey  vs.  Banner,  Ib.  250.  Turner  vs.  Turner,  1 
Jac.  <§•  Walk.  43.  Treves  vs.  Townsend,  1  Cox,  50,  (note  2.) 
Forbes  vs.  Ross,  2  Cox,  112,  113,  Sac.  2  Madd.  Chun.  134.  2 
Fonb.  184  to  188,  notes  (o)  (p.)  Mosely  vs.  fVard,  1  Vts. 
581.  Dor n ford  vs.  Dornford,  12  Vts.  127.  Stock  vs.  Stuck, 
1  Dcsa.  C.  R.  193,  (note.}  Fox  vs.  Wilcox,  1  Binney,  195. 
Hall  vs.  Callaghan,  1  Scrg.  4'  Rawle,  241%  Lenoirvs  Winn^ 
4  Z)e.ya.  C.  J?.  71,  454.  M7/er  V5.  Beverly,  4  Hen.  fy  Munf. 
415  to  418.  Quarks  vs.  Quarles,  2  Munf.  321,  325.  Car- 
ter's Ex.  vs.  Cutting  and  Wife,  5  Munf.  223,  233.  The 
existence  of  outstanding  debts  has  never  been  considered  as 
justifying  trustees'  omission  to  invest,  or  at  all  affecting  their 
responsibility  for  interest.  If  the  monies  had  been  invested 
in  stock,  instead  of  the  ferries,  this  item  alone  would  have 
produced,  at  this  day,  353,000.  Mound's  debt  was  nominal, 
and  to  the  amount  claimed,  they  might  have  invested  as  well 
as  retained;  for  the  judgment  was  enjoined,  and  Maund  never 
VOL.  i.  8 


58  CASEb  IX  THE  COURT  OF  APPEALS 

KINGGOLD  v.   KIHGGOI.D. — 1826. 

made  any  motion  to  dissolve,  nor  the  respondents  to  perpe- 
tuate; but  twenty  years  after  the  injunction,  the  complainants 
themselves,  (the  trustees  having  abandoned  the  trust,)  ob- 
tained its  dissolution.  Gray  vs.  Thompson,  1  Johns.  C.  R. 
32.  Dunscomb  vs.  Dunscomb,  1  Johns.  C.  R.  508,  535. 
Shiffelln  vs.  Stewart,  1  Johns.  C.  R.  620.  Brown  vs.  Rick- 
ets, 4  Jo/ins.  C.  R.  303.  Mimise  vs.  Cox,  5  Johns.  C  R. 
441,  44S.  Murray  vs.  Munford,  6  Johns.  C.  R.  17,  452.  7 
Johns.  265.  4  Des.  369,  556. 

On  the  subject  of  compound  interest  they  contended,  1, 
That  compound  interest  is  as  moral  and  legal  a  claim  as  simple 
interest,  wherever  interest  upon  interest  has  been  made,  or 
might,  and  ought  to  have  been  made.  The  interest,  upon  the 
dividends  or  interest,  must  be  somewhere,  and  if  made,  is  the 
property  of  the  owner  of  the  principal: — if  not  made,  and 
there  is  no  gross  negligence,  the  courts,  so  far  favour  a  debtor, 
executor,  guardian,  or  trustee,  as  not  to  charge  them  with  it: 
but  whenever  the  duty  is  plain,  and  it  has  been  clearly  vio- 
lated, compound  interest  is  uniformly  allowed  by  the  decisions, 
not  only  of  England  and  the  United  States,  but  of  most, 
other  countries.  2.  Where  the  trust  directs  investment,  and 
none  is  ever  made,  but,  on  the  contrary,  the  trustee  never  in- 
tended to  make  any,  the  courts  uniformly  allow  compound  in- 
terest, or,  what  amounts  to  the  same,  the  interest  is  added  on 
the  yearly  balances  of  principal  and  interest.  3.  Merely  as 
between  debtor  and  creditor,  interest  upon  interest  is  rarely 
allowed — but  still  compound  interest  is  as  recognised  a  right 
in  certain  cases,  as  simple  interest  is.  They  cited  Waring  vs. 
Cunlijfe,  1  Ves.  Jr.  99,  (and note  \.)  Schijfelin  vs.  Stewart, 

I  Johns.  Ch.  Rep.  624  to  629.     Newton  vs.  Bennet,  1  Bro. 
C.  R.  359.     Earl  of  Lincoln  vs.  Alien,  6  Bro.  P.  Ca.  319. 
Robinson  vs.  Gumming,  3  Jitk.  410.     Raphael  vs.  Boehm, 

II  Vcs.  92,  108,  109    Hammond's  Dig.  332,  s.  5.  Jlshhurn- 
hamvs.  Thompson,   13  Vts.  403.     Raphael  vs.  Boehm,  13 
Ves.  407,  590.     Peirce  vs.  Rowe,   1  New  Hamp.  Rep.  183, 
Dornford  vs.  Dornford,  12  Ves.  127.     Kennon  vs.  Dickins, 
Cam.  <$•  Norw.  361.  Nightingale  vs.  Lawson,  1  Bro.  C.  R. 
440,  443.     The  case  now  before  the  court,  is  one  demanding 
the  allowance  of  compound  interest  much  more  strongly  than 


OF  MARYLAND,  59 


UllTGOOI.il    7'.    RlJJGGOLD. 1826. 


in  the  case  of  Catlett  vs.  flames,  6  Harris  <§•  Johns.  Rep. 
475,  482.  In  this  case,  it  is  proved  that  the  trustees  have  spo 
culated  on  §18,000,  at  least,  of  the  trust  estate.  They  not. 
only  never  invested  one  cent  as  directed,  but  they  invested 
SlS,000  in  a  wild  speculation  of  their  own.  They  completely 
amalgamated  the  entire  trust  estate  with  their  own.  They  not 
only  let  monies  remain  idle,  but  being  directed  to  invest,  they 
used  the  trust  money,  paid  no  debts  until  compelled,  and  in- 
volved the  estate  into  costs,  and  fees  of  all  kinds.  Even  the 
allowance  of  compound  interest  might  not  fully  indemnify  the 
complainants;  and  though  trustees  are  not  to  be  severely  dealt 
with  in  cases  of  mere  negligence,  yet  when  their  duty  is  plain, 
and  they  have  never  manifested  the  least  intention  to  make  the 
estate  productive,  and  to  surrender  their  talent  with  its  proper 
increase,  equity  not  only  allows  compound  interest,  but  will 
scrutinise  every  account.  Giving  therefore,  the  fullest  extent 
ol  the  odium  justly  attached  to  compound  interest,  when  it 
is  used  as  a  means  of  unseemly  gain,  the  courts  adopt  it  with 
alacrity,  as  the  only  means  of  attaining  justice,  wherever 
persons  in  fiduciary  relations,  have  forgotten  the  widow's  and 
the  orphan's  portion,  and  heedlessly  disregard  plain  direc- 
tions, and  simple  duties. 

They  argued  that  the  pendency  of  Maund's  claim  did  not 
exempt  the  trustees  from  the  charge  of  even  compound  inte- 
rest; and  examined  the  authorities  cited  on  the  other  side,  in 
the  previous  argument,  as  to  the  effect  of  outstanding  claims, 
to  relieve  trustees  from  the  charge  of  interest;  and  contended, 
that  it  was  incumbent  on  the  trustees,  in  order  to  exempt  them- 
selves from  the  charge,  to  show  that  they  had  deposited  the 
money  in  chancery,  or  secured  it  under  the  sanction  of  chan- 
cery, so  as  always  to  be  ready  for  the  cestui  oue  trusts,  or  to 
meet  the  judgment  of  Maund;  and  that  it  was  the  duty  of  the 
trustees,  to  save  themselves  from  interest,  to  apply  to  the  chan- 
cellor to  have  the  funds,  adequate  to  Maund's  judgment,  in- 
vested, while  the  suit,  in  regard  to  the  judgment,  was  pending; 
and  as  the  time  of  its  termination  was,  of  course,  uncertain. 

7.  On  the  seventh  point,  they  contended,  1.  That  the  settled 
and  unvarying  doctrine  of  the  common  law  is,  that  private  trus- 
tees, who  have  not  stipulated  for  a  compensation,  act  gratui- 


60  CASES  IN  THE  COURT  OF  APPEALS 

UIXGGOLD  v.  KINGCOLD. — 1826. 

fously,  and  that  no  compensation  or  reward  can  be  decreed  to 
them.     That,  under  the  head  of  "just  allowances,"'  their  ne- 
cessary charges,  and  a  small  indemnity  for  days  or  time  actu- 
ally spent  in  executing  trust  duties,  will  be  granted,  when  the 
fime  is  clearly  made  out.     2.  That  no  statute,  act  of  assembly, 
or  rule  of  court,  having  altered  this  established  law,  this  court, 
if  it  allows  commissions  in  this  case,  must  judicially  legislate. 
And  though  the  validity  of  even  a  rule  of  court,  in  such  case, 
might  be  questioned,  yet  as  there  is  no  such  rule,  a  decision  in 
1his  case,  contrary  to  the  common  law,  and  in  the  absence  of 
any  statutory  provision,  or  rule  of  court,  would  be  a  decree  es- 
tablishing a  rule  retrospectively.     3.  That  even  if  commissi- 
ons be  allowable,  it  is  still  not  a  fixed  commission  of  5  per 
cent,  but  is  under  the  discretion  of  the  court;  and  as  no  ser- 
vice has  been  rendered,  and  all  expenses  have  been  liberally  al- 
lowed, this  court  will  not  go   beyond  a  per  diem,  which  the 
trustees  have  failed  to  prove:  or  if  a  commission,  in  lieu  of  a 
per  diem,  then  a  commission  of  one  or  two  per  cent,  for  the 
sake  of  approximation  to  a  per  diem.     4.   That  if  compound 
interest  be  refused  to  complainants,  that  then   the  entire  com- 
missions ought  to  be  refused  to  the  respondents,  as  the  former 
claim   rests  on  moral   and   legal  reasons;  the  latter,  on  moral 
grounds  only,  and  this  too,  only  in  the  case  of  zealous  and  me- 
ritorious services,  and   a  willing,  full,  and   satisfactory  settle- 
ment.    And  the  court's  discretion  will  be  applied  both  to  the 
fact  of  the  allowance,  and  the  rate  of  commission.     The  Ro- 
man law  was  decided,  that  nothing  beyond  reasonable  and  just 
expenses  should  be  allowed  to  a  trustee.     Lucrum  faccre  ex 
pv.pilli  tutela  tutor  non  debet.   Dig.  26,  7,  33.  Domat,  book 
2,  «v.  2,  pi.  3;  s.  3,  pi.  35.      The  common  law  was  always  so  as 
to  bailiffs,  guardians,  &c.      Co.  Lift.  89.   Lift.  s.  123.    So  of  a 
mortgagee  in  possession,  1  Ver.  316.    2  Ath.   120.    1  Smith's 
Rep.  252.    8  Jltk.  518.    1   Pow.  on  Mart.  296.    2   Pow.  on 
l^Aortg.  1072.     As  to  trustees,  the  common  law  from  the  ear- 
liest times,  down  to  the  present  day,  has  persisted  in  this  prin- 
ciple.    How  vs.  Godfrey,  Finch,  361.      Bonithon  vs.  Hock- 
more,  1    Vern.  316.      Scatterwood  vs.  Harrison,  Moseley's 
Rep.  128.     Robinson  vs.  Pett,  3  P.  Wms.  248.    Char.  Corp. 
vs,  Sutton,  2  .fttk.  406.      JlyUff    vs.  Murray,  2  tftk.  52. 


OF  MARYLAND.  61 


KlNGGOLD    V.    RrWGGOI.Il. 1826. 


Gould  vs.  fleetwood,  3  P.  Wms.  351.  tfmb.  78.  4  Ves.  72 
10  Ves.  184,  In  re.  Ormsby,  1  Ball  &  Beatty,  189.  /few. 
Dz£-.  641,  5.  2,  3.  Highm.  on  Lun.  70,  71.  1  Crw.  Ztf#.  357, 
s.  42,  43, 44.  4  Desau.  C.  R.  368.  Green  vs.  Winter,  1  Johns. 
C.  R.  27,  37,  38, 43.  Planning  vs.  Manning,  1  Johns.  C.  JR. 
527.  Mfiwon  tw.  Roosevelt,  5  Johns.  C.  /?.  534,  540.  Mtm- 
ybrrf  r.9.  Murray,  6  Johns.  C.  JR.  1,  17. 

8.  On  the  eighth  point.  The  complainants  claim  to  charge 
Tench  in  all  cases  equally  with  his  co-trustee,  and  if  he  ex- 
empts Samuel,  he  at  the  same  time  exempts  himself.  He  is 
responsible  for  costs,  as  well  as  liable  for  all  that  may  be  de- 
creed; so  that  he  could  not  be  examined  even  de  bene  essc. 
But  as  his  interest  in  the  event  of  the  suit  is  now  manifest,  his 
deposition,  if  taken  de  bene  esse,  cannot  be  read;  and  if  read 
is  entitled  to  but  little  credit;  as  it  is  vague  and  unsatisfactory. 
They  cited  Dixon  vs.  Parker,  2  Ves.  219.  Bridgmanvs. 
Green,  Ib.  629.  Downey  vs.  Townsend,  Jlmbl.  592.  2  Eq. 
Ca.  Jib.  397,  pi.  12.  Skin.  673.  Murray  vs.  Shadwell,  2 
Ves.  4*  Bea.  401,  (and  note  a.)  Whipple  vs  Lansing,  3 
Johns.  Ch.  Rep.  612.  Lee  vs.  Atkinson,  2  Cox,  412.  Plod- 
ding vs.  Winter,  19  Ves.  196. 

Wirt,  (Attorney  General  of  U.  S.)  Jones,  Taney,  and 
Magruder,  for  the  Appellees  in  the  second  appeal,  on  the 
fifth,  sixth,  seventh  and  eighth  points. 

5.  On  the  fifth  point,  as  to  the  effect  of  the  answers.  Se- 
veral of  the  credits  claimed  by  the  defendants  are  objected  to, 
because  there  is  no  evidence  (except  their  answer,)  in  support 
of  them.  It  becomes  of  importance,  therefore,  to  ascertain 
whether  so  much  of  the  answers  as  the  defendants  rely  on,  be 
evidence  for  them.  The  bill  of  complaint  calls  upon  the  de- 
fendants expressly  to  "render  a  particular  account  of  their 
transactions  under  said  deeds  of  trusts."  "Whether  they  have 
paid  any  of  the  debts  due  from  the  said  Thomas  Ringgold, 
and  state  the  same."  So  much  of  the  answers  as  the  defen- 
dants would  call  to  their  aid,  is  strictly  responsive  to  the  bill. 
It  is  not  necessary  then  to  maintain  the  correctness  of  the 
ground  taken  by  Chancellor  Johnson.  His  opinion  was,  that 
if  the  complainants  chose  to  make  the  defendants  disclose  on 


62  CASES  IN  THE  COUftT  OF  APPEALS 

HlWGOOLI)  V.  RlNCGOLD.  — 1826. 

oath  any  part  of  the  transaction,  they  were  bound  to  let  the 
defendants  disclose  the  whole.  That  the  matter  in  avoidance 
of,  as  well  as  the  matter  responsive  to  the  bill,  was  evidence 
for  the  defendants,  if  the  matter  in  avoidance  was  matter 
strictly  connected  with  the  matter  responsive.  In  this  he  evi- 
dently differed  with  Chancellor  Kent,  in  Hart  vs.  Ten  Eyck, 
2  Johns.  Ch.  Pep.  62,  who  on  the  authority  of  a  case  in  Gil- 
bert's Law  of  Evidence,  45,  decided,  (not  that  matter  strictly 
responsive  to,  but)  that  no  matter  in  avoidance  of  the  bill, 
could  be  evidence  for  the  defendant.  In  the  latter  case  it  was- 
simpty  decided,  "that  the  detendant  must  make  out  by  proof," 
(not  what  is  responsive  to  the  bill,  but)  "what  was  insisted  on 
by  way  of  avoidance."  The  matter  stated  in  the  defendants' 
answers  is  not  in  avoidance,  but  purely  responsive  to  the  bill. 
Nothing  which  the  complainant's  bill  demands  of  the  defen- 
dant to  set  forth  in  his  answer,  can  be  called  matter  in  avoid- 
ance. The  defendants  have  no  interest,  therefore,  in  disput- 
ing the  correctness  of  Chancellor  KenVs  decision.  If  they 
had,  it  might  be  said  for  them,  that  it  appears  by  the  index  to 
7  Johns.  Ch.  Rep.  75,  pi.  11.  that  his  decree  was  reversed; 
and  it  is  a  thing  unheard  of  that  the  supreme  court  of  one 
state  should  borrow  its  law  from  the  inferior  court  of  another 
state,  whose  decision  had  been  reversed  by  its  own  superior 
court.  Many  of  the  cases  cited  only  go  to  show  that  the 
Chancellors  were  disposed  to  agree  with  Chancellor  Johnson, 
as  to  what  ought  to  be  the  law;  that  the  decision  in  Gilbert 
is  so  often  productive  of  mischief,  that  it  is  desirable  often- 
times, for  the  purposes  of  justice,  to  escape  from  its  operation. 
The  doctrine  of  that  case,  however  has  been  so  long  esta- 
blished, that  it  would  be  judicial  legislation  to  overrule  it.  Yet 
it  has  not  been  longer  settled,  nor  is  it  better  known,  or  en- 
titled to  as  much  respect,  as  the  rule  for  which  we  contend. 
"The  general  rule,"  (says  Chief  Justice  Marshall  in  Clark's 
Ex*rs.  vs.  Van  Riemsdyk,  9  Cranch.  160,)  "that  either  iwo 
witnesses,  or  one  witness  with  probable  circumstances,  will  be 
required  to  outweigh  an  answer,  asserting  a  fact  responsively 
to  the  bill,  is  admitted."  Yet  the  dodrine  we  have  to  com- 
bat, is  that  no  witness  is  necessary  to  outweigh  it;  for  that  it  is 
not  evidence  at  all,  unless  perhaps  the  complainant  is  obliged 


OF  MARYLAND.  63 


v.  RiHeeOLD. — 1826. 


to  rely  upon  it  in  order  to  make  out  his  case.  Widely  dif- 
ferent was  the  opinion  of  Chief  Justice  Marshall.  He  un- 
derstood the  rule,  and  reason  of  the  rule.  "The  reason,  (he 
adds,)  on  which  the  rule  stands  is  this.  The  plaintiff  calls 
upon  the  defendant  to  answer  an  allegation  he  makes,  and 
thereby  admits  the  answer  to  be  evidence."  If  therefore 
there  be  but  one  witness  in  opposition  to  the  answer,  we  have 
the  oath  of  one  man,  and  opposed  to  the  oath  of  another,  and 
the  complainants'  solitary,  though  disinterested,  and  it  may  be 
unexceptionable  witness,  will  not  outweigh  the  oath  of  the  in- 
terested defendant.  Such  is  the  general  rule  of  equity,  found- 
ed when  understood,  in  the  strictest  propriety.  It  is  to  be 
found  in  all  the  writers  uniformly  recognized  and  acted  upon 
by  learned  chancellors,  and  yet  to  be  questioned  by  any  court 
of  equity.  "There  is  no  principle,"  (says  Chancellor  Han- 
son, in  Hopkins  vs.  Stump,  2  Harr.  fy  Johns.  304,)  "better 
established  than  this,  that  if  a  defendant  be  compelled  to 
answer,  whatever  he  says  on  oath  shall  prevail,  unless  re- 
futed by  the  testimony  of  two  witnesses,  or  of  one  witness 
with  equitable  circumstances."  Such  is  the  strong  and  con- 
clusive language  upon  this  point,  of  men  whose  opinions 
no  judicial  tribunal  is  at  liberty  to  treat  with  disrespect 
Such  has  been  repeatedly  declared  to  be  the  rule  of  equity 
by  the  former  and  present  court  of  appeals  of  this  state. 
Without  alluding  to  others,  in  the  case  of  Jones  vs.  Sluby, 
5  Harr.  $•  Johns.  373,  it  was  explicitly  admitted  by  this 
court  that  the  answer,  so  far  as  it  was  responsive  to  the  bill, 
was  evidence,  but  declared  to  be  only  parol  evidence.  Surely 
the  decisions  of  this  court  ought  to  be  some  evidence  to  itself 
of  the  law.  But  it  is  said  that  the  defendants  ought  to  have 
produced  vouchers,  and  not  to  have  relied  on  their  own 
oaths.  The  answer  to  this  is  that  it  was  not  for  the  defendants 
to  judge  by  which  description  of  evidence  they  should  esta- 
blish their  title  to  the  credits  which  they  claimed.  The  com- 
plainants were  to  make  the  choice  for  them,  and  they  chose  not 
to  require  the  vouchers,  which  might  deceive,  but  insist  that 
they  should  be  set  forth  in  the  defendants'  answers,  which  were 
to  be  verified  by  their  own  oaths.  Now  suppose  the  defend- 
ants,  in  answering  this  bill,  had  omitted  to  state  what  debts  had 


64  CASES  IN  THE  COtTRT  OF  APPEALS 

-    ...  ; , -~L 

RiNOGOLD  V.  RlNGOOI/D. 1826. 

been  paid  by  them,  but  in  answer  to  that  part  of  the  bill  had 
offered  to  produce  vouchers  in  support  of  the  credits  to  be 
claimed  by  them,  what  might  the  complainants  have  done? 
Precisely  what  they  did  do,  with  the  first  answer  of  Tench 
Ringgold — excepted  to  it  for  insufficiency,  and  claim  the  state- 
ment which  was  to  be  verified,  not  by  vouchers,  but  by  their 
own  oaths.  The  complainants  have  a  right  to  insist,  that  they 
be  furnished  with  proof  of  the  several  credits  which  the  de- 
fendants claim.  They  do  demand  it,  and  it  is  furnished  to  them. 
They  now  complain  of  the  absence  of  other  proof — proof  for 
which  they  did  not  call,  and  which  of  course  they  did  not  au- 
thorise the  defendants  to  produce.  Will  it  be  pretended  that 
the  defendants  had  a  right  to  burthen  this  case  with  voluminous 
records,  judgments,  decrees,  bonds,  with  receipts  in  them,  &c. 
&c.  when  the  complainants,  who  were  to  be  the  exclusive 
judges  of  the  necessity  and  propriety  of  calling  for  them,  in- 
stead of  asking  ior  vouchers  demanded  only  of  the  defendants 
to  state  in  their  answer  " whether  they  have  paid  any  of  the 
debts  due  from  the  said  Thomas  Ringgold,  and  state  the 
same."  With  respect  to  the  disputed  items,  the  charge  against 
the  defendants  for  the  negroes  taken  from  Prospect  Hill)  is 
conclusively  refuted  by  several  witnesses.  The  credit  claimed 
by  *9.  Ringgold  for  the  money  paid  to  M'Mechen,  is  establish- 
ed by  the  testimony  of  Tench  Ringgold.  Other  proof  could 
have  been  obtained  in  support  of  the  credits  now  disputed,  if  it 
could  have  been  surmised  thatthey  needed  other  vouchers.  With 
respect  to  most,  if  not  all  of  them,  though  disputed  in  this 
court,  they  were  admitted  in  the  court  of  chancery.  The  ac- 
count, on  which  the  complainants  insist  as  the  correct  ac- 
count, allows  to  the  defendants  the  principal  part  of  these 
credits;  and  though  their  exceptions  are  not  to  be  regarded  as 
exceptions  here,  yet  they  must  be  considered  as  assertions  or 
admissions  by  the  complainants.  They  then  stated  the  exception, 
which  insists  upon  a  particular  account,  and  excepts  to  all  other 
accounts,  so  far  as  they  are  inconsistent  with  the  above  account. 
They  then  turned  to  that  account,  and  took  from  the  credit 
side  such  of  the  credits  there  allowed  as  disputed,  viz.  M'Me- 
chen's  and  Wtlmer's  claims.  The  above  exception,  if,  as  it 
is  supposed,  may  be  used  as  evidence  against  the  complainants. 


OP  MARYLAND.  65 

KiNoooi.n  v.   KINOOOLH. — 1826. 

is  a  distinct  admission  that  the  defendants  are  entitled  to  those 
credits,  and  therefore  need  not  offer  proof  of  them.  In  addi- 
tion to  this  there  has  been  produced  repeated  settlements  of  the 
defendants'  accounts  with  T.  Ringgold,  and  admissions  by 
him  that  they  were  correct,  and  that  they  are  entitled  to  the 
credits  which  they  now  claim.  Surely  he  who  created  the. 
trusts,  declared  the  purposes  for  which  they  were  created,  and 
was  himself  a  cestui  que  trust,  had  a  right  to  examine  the  ac- 
counts of  the  trustees,  and  to  approve  of  them.  And  his  ad- 
missions ought  to  be  some  evidence  of  the  correctness  of  the 
payments  made  by  the  trustees.  If  rejected,  as  claims  on  the 
trust  fund,  because  others  were  interested  with  him  in  that 
fund,  they  are  to  be  allowed  in  the  settlement  of  that  part  of 
the  estate — the  chose  in  action,  &c.  which  never  constituted 
any  part  of  the  trust  estate,  but  still  remained  his  own,  yet  to 
be  disposed  of  as  he  pleased,  and  answerable  for  any  debt  of 
whatever  description  he  might  admit.  On  this  point  they  also 
referred  to  Blount  vs.  Burrows,  4  Bro.  Ch.  Rep.  75.  S.  C. 
1  Ves.  jr.  546.  Kirkpatrick  vs.  Love,  Jlmbl.  589.  Snell- 
grove  vs.  Baily,  3  Jltk.  214.  Doyle  vs.  Blake,  2  Sc/i.  <$•  Lef. 
243,  Lady  Ormond  vs.  Hutchinson,  13  Ves.  54.  Green  vs. 
Hart,  1  Johns.  Rep.  580.  Hart  us.  Ten  Eyck,  2  Johns.  Ch. 
Rep.  93,  (note.)  1  Fonbl.  179. 

ti.  On  the  sixth  point.  Whether  the  decree  should  be  en- 
hanced from  simple  to  compound  interest?  This  question  has 
been  fully  argued  on  the  third  point.  It  is  settled  law  that 
these  trustees  are  not  chargeable  with  any  breaches  of  trust,  not 
charged  in  the  bill.  Smith  vs.  Smith,  4  Johns.  Ch.  Rep.  2S1. 
It  is  not  charged  in  either  of  the  bills  that  there  was  any  delay 
in  paying  debts,  or  in  bringing  Maund's  affair  to  a  final  deci- 
sion. James  vs.  M'Kernon,  6  Johns.  Rc'p.  543.  Where  a 
trustee  makes  profit,  and  will  not  give  an  account,  he  is  charge- 
able with  compound  interest.  Evertson  vs.  Tappen,  5  Johns. 
Ch.  Rep.  498,  517.  Where  the  deed  creating  the  trust  directs 
an  investment  of  the  interest,  which  is  not  done,  then  com- 
pound interest  is  charged.  Raphael  vs.  Boehm,  11  Ves.  92. 
S.  C.  13  Ves.  407,  411.  Darne  <$*  Gassaway  vs.  Cat  let  t,  6 
Harr.  <§•  Johns.  475.  In  Rocke  vs.  Hart,  1 1  Ves.  58,  the  mo- 
ney was  used  by  the  executor  in  the  course  of  his  trade;  and 
VOL.  1  0 


66        CASES  IN  THE  COURT  OF  APPEALS 

KlNfJOOLD    V.    RlNGGOLD. 1826. 

yet  only  equitable  rate  of  interest  of  4  per  cent,  was  allowed. 
In  Young  vs.  Combe,  4  Ves.  101,  there  was  an  express  viola- 
tion of  the  trust.  The  executor  had  the  money  in  hand,  and  it 
was  his  duty  to  invest.  Only  4  per  cent,  was  allowed*  In 
Newton  vs.  Bennett,  1  Bro.  Ch.  Rep.  362,  the  executor  kept 
the  money  without  accounting,  but  employed  it  in  his  trade. 
Simple  interest  only  was  allowed.  The  note  in  that  case  shows 
that  the  only  question  was  as  to  4  or  5  per  cent,  not  compound 
interest.  Where  gain  is  made  the  trustee  is  to  account  for  the 
gain,  or  pay  5  per  cent,  interest.  Mosley  vs.  Ward,  11  Ves. 
581.  The  case  of  Forbes  vs.  Ross,  2  Bro.  Ch.  Rep.  430,  was 
a  case  of  fraud.  They  also  referred  to  and  commented  on, 
Perkins  vs.  Baynton,  1  Bro.  Ch.  Rep.  375.  Treves  vs.  Towns- 
fiend,  Ibid  384.  Piety  vs.  Stace,  4  Ves.  620.  *ftshburnham 
vs.  Thompson,  13  Ves.  402.  Crackel  vs.  Bethune,  1  Jacob  4' 
Walker,  566.  A  contract  to  account  for  compound  interest  is 
void.  Where  it  is  allowed,  is  a  relaxation  of  the  general  rule. 
1  Ball  Sf  Beatty,  430.  Waring  vs.  Cunliffe,  1  Ves.  jr.  99, 
(and  note.)  Ex  parte  Bevan,  9  Ves.  223.  Connecticut  vs. 
Jackson,  1  Johns.  Ch.  Rep.  13.  Barrow  vs.  Rhenelander,  Ib. 
550.  Van  Benschooten  vs.  Lawson,  6  Johns.  Ch.  Rep.  313. 
Darne  Sf  Gassaway  vs.  Catlett,  6  Plarr.  $?  Johns.  475.  Com- 
pound interest  is  allowed  in  certain  specified  cases  of  mort 
gages,  &c.  Perkynsvs.  Baynton,  1  Bro.  Ch.  Rep.  574.  Creuze 
vs.  Lowth,  4  Bro.  Ch.  Rep.  157,  316.  Raphael  vs.  Boehm, 
13  Ves.  5^0.  This  last  case  was  an  innovation  upon  the  gene- 
ral doctrine.  The  direction  there  was  to  invest  the  interest  to 
accumulate  for  the  benefit  of  the  trust.  Treves  vs.  Townshend, 
1  Cox's  Cas.  50,  (note  2.)  S.  C.  1  Bro.  Ch.  Rep.  384.  Tebbs 
vs.  Carpenter,  1  Madd.  Rep.  290.  Dornford  vs.  Dornford, 
12  Ves.  127.  In  the  most  aggravated  cases  no  compound  in- 
terest was  allowed.  Hall  vs.  Hallett,  1  Cox,  134.  Crackel 
vs.  Bethune,  1  Jac.  $  Walk.  566. 

The  detainer  of  one  trustee  does  riot  make  his  co-trustee  an- 
swerable for  interest, unless  the  money  is  placed  in  the  hands  of 
his  co-trustee  out  of  the  line  of  the  trust,  or  with  knowledge 
that  his  co-trustee  is  not  trust-worthy,  and  who  applies  the 
funds,  not  for  the  purposes  of  the  trust.  Is  the  case  open  in 
this  point?  Or  indeed  is  compound  interest  before  the  court? 


OF  MARYLAND. 


IllNOKOLI)  V.  RlSGCOLD. 1826. 


The  instructions  by  complainants  to  the  auditor.  The  auditor's 
statement  was  to  be  made,  subject  to  exceptions.  No  excep- 
tion by  complainants  to  the  auditor's  statement.  They  are  now 
precluded  from  excepting.  They  affirmed  the  auditor's  state- 
ment, and  now  they  wish  to  except.  Wilkes  vs.  Rogers,  C  Johns. 
Rep.  566,  591. 

[BUCHAXAX,  Ch.  J.  Very  soon  after  the  constitution  of  the 
present  court,  it  was  decided  that  the  auditor's  report,  to 
which  there  had  been  general  exceptions,  or  where  there  had 
been  special  exceptions,  or  where  there  had  been  no  exceptions 
taken  to  it  in  the  court  below,  might  be  excepted  to  in  this 
court,  and  the  whole  accounts  gone  into.] 

7.  On  the  seventh  point.     Although  a  commission  is  not 
allowed,  yet  a  substitution,   by  •  way  of  compensation,   is  al- 
lowed to  trustees.    Ellison  vs.  Jlirey,  1  Ves.  115.  Brown  vs. 
Litton,  1  P.    Wins.  140.     Chetham  vs.  Dudley,  4    Ves.  72, 
(and  note.) 

8.  On  the  eighth  point.     Although  in  general  a  co-plaintiff 
cannot  be  examined,  yet  a  co-defendant  may  be  examined  in  a 
matter  in  which  he  is  not  concerned.      Brid.  Ind.  G59,  pi.  2, 
5;  660,  pi.  12,  13,  14.      Here    Tench  Ringgold  cannot  be  in- 
terested;  for  he   is  defaulter,   and  the  attempt  is  to  charge 
Samuel,  who  is  a  creditor  to  the  trust.     So  that  whether  Sa- 
muel is  to  be  prevented  from   the  credit  in   paying  the  debt  to 
M'Mechen,   is  of  no  sort  of  consequence  to   Tench,  as  it  will 
neither  make  him  pay  more,  nor  less,  if  the  decree  is  against 
him.     Murray  vs.  Shadwell,  2  Ves.  Sf  Beames,  404,  405. 

ARCHER,  J.  delivered  the  opinion  of  the  Court.  This  cause 
is  one  of  great  magnitude  and  interest;  of  magnitude,  in  rela- 
tion to  the  amount  involved  in  its  determination,  and  of  interest, 
not  only  on  account  of  the  principles  connected  with  its  deci- 
sion, but  of  the  peculiar  relations  in  which  the  parties  concern- 
ed stand  to  each  other.  On  the  one  side,  the  complainants  are 
the  widow  and  children  of  one,  whose  infirmities  and  dissipated 
habits  were,  early  in  life,  involving  in  ruin  and  entanglement 
a  large  patrimonial  estate,  and  who  gave  sure  indications  that, 
in  a  short  time,  he  would  reduce  to  poverty  his  wife  and  family. 
On  the  other  hand,  the  respondents  are  the  uncles  of  the  com- 


68  CASES  IN  THE  COURT  Or  APPEALS 

KINGGOLD  v.    KmrccoLn. — 1826. 

plainants,  who,  observing  the  unfortunate  habits  of  their  brother, 
generously  stepped  in  between  him  and  his  tottering  fortune, 
and  took  upon  themselves  the  onerous  duties  of  trustees  of  his 
estate.  After  a  period  of  twenty-four  years,  they  are  present- 
ing to  this  tribunal  an  account  of  their  stewardship,  which  has 
been  demanded  by  the  widow  and  children  of  their  brother. 

After  a  laborious  discussion  of  the  very  eminent  counsel  con- 
cerned for  the  parties,  we  have  approached  the  examination  of 
the  multifarious  and  perplexed  transactions  which  have  grown 
out  of  a  trust  of  such  duration,  with  an  anxious  solicitude  to 
arrive  at  truth,  and  by  applying  the  law  to  ascertained  facts,  to 
reach  the  justice  of  the  case.  Courts  have  very  frequently 
painful  duties  to  perform;  and  although  they  cannot  be  blind 
to  the  consequences  which  may  flow  to  individuals  from  their 
decrees,  yet  insensibility  to  them  is  a  stern  mandate  of  judicial 
duty. 

We  do  not  deem  it  necessary  for  the  purpose  of  this  decree, 
to  recapitulate  the  proceedings  and  numerous  facts  in  the  re- 
cord; they  will,  perhaps,  be  found  to  be  sufficiently  stated  in 
the  auditor's  report  and  in  the  chancellor's  decree.  The  cross 
nppeals  will,  for  the  purpose  of  this  opinion,  be  considered  as 
consolidated;  and  we  shall  proceed  to  present  our  views  of  the 
various  questions  which  have  been  raised  in  the  discussion  by 
the  counsel  on  either  side. 

The  court  conceive  that  the  trustees  are  accountable  for  the 
value  of  Hopeivell.  In  the  view  which  we  take  of  this  sub- 
ject, so  far  at  least  as  concerns  Ibis  question,  it  is  immaterial  to 
inquire,  whether  the  transfer  of  this  estate  was  made  under  the 
deed  of  1798,  or  of  1807;  for,  in  either  view,  they  were  not 
authorised  to  transfer  that  estate  except  by  a  sale.  If  it  were 
considered  as  coming  under  the  provisions  of  the  deed  of  De- 
cember 1807,  its  terms  are  too  explicit  to  need  illustration.  As 
it  regards  the  deed  of  1798,  they  were  authorised  to  sell  the 
whole  or  a  part  of  the  real  estate  on  credit,  or  for  cash,  and 
the  surplus,  whether  consisting  of  real  estate,  bonds  or  money, 
was  to  be  applied  as  is  therein  directed.  It  has  been  contend- 
ed, that  the  trustees  under  this  deed  had  authority  to  make  the 
exchange  of  Hopewell  for  the  Ferry  properly  on  the  Susque- 
banna,  because  the  deed  contemplates  a  surplus  of  land  re- 


OF  MARYLAND.  69 

KlNGGOLP  V.  RlNOGOLD.  — 1826. 

maining  on  hand  after  the  objects  of  the  deed  are  gratified. 
The  trustees  might,  in  their  discretion,  only  sell  a  part  of  the 
real  estate,  and  the  part  in  that  event  remaining  in  their  hands, 
would  have  been  a  surplus  over  and  above  what  was  necessary 
to  effectuate  the  objects  of  the  trust  The  argument  would 
have  been  entitled  to  more  weight,  had  the  direction  been  to 
sell  the  whole  estate.  The  sale  of  Hopewell,  was  not  only  a 
violation  of  the  express  stipulations  of  the  trust,  but  was  known 
and  acknowledged  to  be  so  by  the  respondents.  The  deed  for 
the  ferries,  from  flichard  S.  Thomas,  was  given  to  them  in 
their  individual  characters,  and  not  as  trustees,  and  the  reason 
for  this  procedure,  as  is  deducible  from  the  complainants'  ex- 
hibit B,  is,  that  they  had  no  right,  by  the  terms  of  the  trust, 
to  take  the  ferries  in  exchange.  In  this  transaction  they  both 
co-operated,  and  although  they  may  have  acted  with  the  best 
intentions,  and  with  the  most  honourable  views  towards  their 
cestui  que  trusts,  this  court  must  hold  them  jointly  responsi- 
ble, unless  by  the  various  acts  of  sanction  which  have  been 
given  by  Thomas  Ringgold,  they  shall  appear  to  have  been 
justified.  Apprehending,  indeed,  responsibility  growing  out 
of  this  transaction,  the  trustees,  if  they  did  not  seek  indemnity 
for  this  contract,  accepted  a  bond  from  Thomas  Ringgold  re- 
citing his  original  assent  to  the  exchange,  and  binding  himself 
to  save  them  harmless;  and  on  the  same  day  on  which  the  bond 
was  executed,  as  if  the  more  surely  to  guard  them  from  antici- 
pated responsibility,  he  made  his  last  will  and  testament,  in 
which,  as  far  as  he  could,  he  attempted  a  ratification  of  this 
transaction.  This  instrument,  although  its  expressions  are 
general,  has  an  undoubted  allusion  to  this  contract  alone,  for  no 
other  sales  of  real  estate  are  alleged  to  have  been  made,  which 
needed  ratification.  These  instruments  were  executed  nearly 
four  years  after  the  execution  of  the  deed  of  December  1807, 
by  which  he  transferred  all  his  land,  negroes,  stock  and  farm- 
ing utensils  to  the  trustees.  His  habits  of  inebriety  are  repre- 
sented by  the  testimony  before  us  to  have  been  confirmed,  and 
to  have  greatly  debased  and  debilitated  his  mind.  He  was  either 
placed,  or  believed  himself  to  be  placed,  in  a  condition  of  the 
most  abject  dependence  on  his  brothers,  for  even  the  most  com- 
mon necessaries  of  life.  He  had  clear  and  unquestionable  rights, 


70  CASES  IN  THE  COURT  OF  APPEALS 

HINGGOLD  v.  RINGGOID. — 1826. 

a$  one  of  the  cestui  que  trusts  under  the  different  deeds  of 
trust,  which  secured  to  him  in  all  probability,  an  ample  inde- 
pendence. Yet,  instead  of  manifesting  any  desire  to  enforce 
those  rights,  as  his  necessities  might  require,  his  letters  rather 
represent  him  in  the  condition  of  a  pennyless  dependant  on  their 
charity  and  bounty.  The  relation  existing  between  a  trustee 
and  cestui  que  trust,  the  policy  of  the  law  requires,  should  be 
guarded  with  vigilance  by  a  court  of  equity — contracts  between 
them  should  be  scrutinised,  that  no  injustice  should  be  done  the 
cestui  que  trusts.  It  is  true,  these  various  acts  of  attempted 
indemnity  do  not,  in  relation  to  the  transactions  to  which  they 
have  reference,  or  from  their  character  as  manifested  on  the  face 
of  them,  bear  any  striking  evidence  of  legal  inefficiency.  It 
might  not  have  been  inconsistent  with  those  great  principles  of 
moral  duty,  or  just  liberality,  which  one  brother  might  owe  to 
another,  to  grant  indemnity  for  acts,  which,  though  injurious  in 
their  consequences,  he  might  have  believed  proceeded  from 
the  purest  motives.  But  a  court  of  equity  ought  to  be  perfect- 
ly satisfied,  that  he  was  free  to  act  as  a  rational  intelligent  man, 
that  he  was  not  governed  by  considerations  growing  out  of  a 
dependant  condition;  and  in  this  case  there  is  too  much  reason 
to  believe,  not  only  from  his  letters,  but  from  his  general  charac- 
ter and  conduct,  as  detailed  by  the  testimony,  that  the  conside- 
rations above  alluded  to,  entered  largely  into  the  motives  for 
executing  these  instruments. 

The  responsibility  of  the  respondents  growing  out  of  this 
contract,  having  been  determined,  it  is  necessary  to  ascertain 
the  price  with  which  they  should  be  charged.  The  cestui  que 
trusts  are  entitled,  upon  every  principle  of  equity,  to  the  full 
value  of  the  lands  at  the  time  of  the  sale.  The  trust  has  been 
violated,  the  title  to  the  lands  disposed  of  contrary  to  the  ex- 
press injunction  of  the  instrument  under  which  they  act,  and 
there  is  no  possible  means  by  which  this  court  can  reinstate  the 
complainants  in  their  interest,  but  by  charging  the  trustees  with 
the  utmost  value  of  the  property.  This  is  the  principle  adopted 
in  the  case  of  a  mixture  or  confusion  of  property,  and  the 
ground  of  it  is,  that  although  the  trustee  may  be  injured  by  its 
application,  yet  the  cestui  que  trusts  are  certain  of  indemnity; 
and  it  would  be  but  just,  that  if,  in  the  impossibility  growing 


OF  MARYLAND. 


RIXGOOLD  v    RiHGGOtn.— 1826. 


out  of  the  conductof  the  trustee  of  ascertaining  the  actual  value, 
injury  should  probably  result,  it  should  rather  fall  on  him  whose 
conduct  had  been  delinquent,  than  on  the  innocent  cestui  que 
trusts.  Yet,  where  the  value  of  the  property  can  be  clearly 
ascertained,  that  must  be  the  measure  of  indemnity.  But 
for  the  circumstances  which  preceded  and  followed  this  sale,  we 
should  have  been  compelled  to  fix  the  value  of  these  lands,  from 
the  opinions  and  recollections  of  witnesses,  of  the  state  and  con- 
dition of  the  property,  and  what  it  would  have  sold  for  in  1807, 
and  for  this  purpose,  the  depositions  of  Mr.  Thomas,  Mr.  Wor- 
rell and  Mr.  Barroll,  would  have  been  sufficient;  but  the  re- 
cord furnishes  us  with  the  evidence  that  these  lands  were  ad- 
vertised for  sale;  that  the  sale  was  attended  by  many  persons 
of  property;  that  the  lands  were  examined  by  several  who  were 
considered  as  desirous  of  purchasing,  and  who  were  able  to 
have  become  the  purchasers:  yet,  that  when  it  was  set  up,  a 
greater  price  could  not  be  obtained  than  $16  per  acre,  aud  that 
the  trustees  bought  it  in  for  the  estate,  at  that  sum,  and  after- 
wards actually  agreed  to  sell  it  to  R.  S.  Thomas  for  that  price, 
and  even  he  refused  to  execute  his  contract.  These  facts  fur- 
nish the  best  evidence,  that  the  lands  did  not  exceed  the  value 
of  $1G,  and  greatly  outweigh  the  opinions  of  witnesses,  as  to- 
its  value,  given  many  years  after  it  was  thus  publicly  offered. 
If  the  land  had  been  more  valuable,  it  would  surely  have  been 
bid  for  at  a  greater  sum,  when  it  was  thus  offered  under  such 
favourable  circumstances.  Nothing  can  be  deduced  of  the  value 
of  Hopewell,  from  the  price  which  was  fixed  on  it  in  the  deed 
from  the  trustees  to  R.  £  Thomas — this  was  done  in  conside- 
ration of  the  exchange — Thomas,  whose  experience  made  him 
better  acquainted  with  the  ferries,  was  anxious  to  dispose  of 
them,  and  probably  anticipated  some  of  the  losses  and  incon- 
veniencies  which  subsequently  attended  them;  although  he  was 
unwilling  to  give  $16  an  acre  for  Hopewell  in  cash,  yet,  if  the 
ferries  were  taken  in  part,  he  was  willing  to  give  a  much  greater 
sum.  This  only  shows  his  anxiety  to  rid  himself  of  the  ferries, 
and  not  that  Hopewell  was,  even  in  his  estimation,  worth  more. 
The  court,  therefore,  think  the  chancellor  erred  in  charging  the 
value  of  Hopewell  and  Chester-  Town  property  at  $25,000. 
The  amount  due  from  Tench  Ringgold  for  the  sale  of  the 


CASES  IN  THE  COURT  OF  APPEALS 


RINGGOID  v.  RurseoLD.  —  1826. 


•332$  acres  of  the  Washington  lands,  has  been  also  one  of  the 
subjects  of  controversy.  It  has  been  contended  by  the  re- 
spondents, that  these  lands  were  sold  by  Thomas  Ringgold 
before  the  execution  of  the  deed  of  trust  of  October  22d,  1798, 
and  that  having  been  so  sold,  they  were  not  conveyed,  or  in- 
tended to  be  transferred  by  that  instrument,  and  were  not  a 
part  of  the  trust  property;  and  this  is  emphatically  stated  in 
the  answers  of  the  respondents;  and  in  the  letters  of  General 
Ringgold  to  Mr.  Brice,  exhibited  by  the  complainants,  he  re- 
grets it  as  a  misfortune,  that  the  lands  were  sold  by  Thomas 
before  the  deed  of  trust  was  thought  of;  and  it  is  said  that  one 
of  the  complainants,  James  G.  Ringgold,  acting  for  himself, 
and  as  agent  and  solicitor  for  the  other  complainants,  has  ad- 
mitted the  fact.  But  whatever  may  be  the  strength  of  this 
testimony,  it  is  not  warranted  by  the  exhibits  and  evidence  in 
the  cause.  By  exhibit  S.  R.  No.  1,  Samuel  Ringgold 
charges  himself  as  trustee  with  the  receipt  of  part  of  the  pur- 
chase money  of  these  lands;  this  account  constitutes  a  part  of 
the  answer,  as  much  so  as  any  express  averment  in  it;  and  in 
Tench  Ringgold'  s  exhibit,  which  also  constitutes  a  part  of 
his  answer,  it  is  said,  that  on  the  21st  of  November,  1798,  a 
settlement  took  place  between  Tench  and  Thomas,  and  as- 
sented to  by  Samuel,  by  which  it  appears  that  Thomas  Ring- 
gold  is  charged  with  the  legacy  due  Tench,  with  interest  up 
to  the  6th  of  March,  1799,  which  shows,  that  until  that  period 
the  legacy  was  unsatisfied,  as  it  could  not  have  been  if  a  sale 
had  taken  place  before  the  deed  of  trust.  These  inferences 
and  facts  are  strongly  supported  loo  by  the  evidence  furnished 
by  the  deed  of  October,  1798,  itself;  that  declares  on  its  face 
the  indebtedness  of  Thomas  to  Tench,  and  one  of  the  first 
objects  of  the  trust  there  created,  is  the  satisfaction  of  the  lega- 
cies due  from  Thomas  under  his  father's  will,  (the  legacy  to 
Tench  being  one)  by  the  sale  of  the  lands.  This  instrument 
does,  therefore,  entirely  negative  the  idea  that  a  sale  of  these 
lands  was  made  before  the  execution  of  that  deed.  But  if 
Thomas  had  agreed  to  sell  the  lands  to  Tench,  the  legal  estate 
in  the  Washington  lands,  with  the  amount  due  thereon,  passed 
to  the  trustees,  and  it  was  unquestionably  the  duty  of  Samuel 
to  collect  the  purchase  money  and  convey  the  property,  The 


OF  MARYLAND. 


KINGGOLII  v.  RINOOOLD. — 1826. 


deed  of  the  27th  of  May,  1799,  from  Thomas  and  Mary 
Ringgoldto  Samuel  and  Tench  Ringgold,  instead  of  im- 
pugning the  idea  of  a  sale  by  the  trustees,  is  calculated  to  con- 
firm it.  If  the  Washington  lands  were  not  trust  property, 
and  did  not  pass  by  the  deed  of  1798,  why  was  this  deed  exe- 
cuted to  Tench  and  Samuel?  Would  he  not  have  been  more 
likely  to  have  himself  coerced  the  payment  from  Tench,  and 
conveyed  it  to  him,  had  he  personally  sold  it  to  Tench,  and 
retained  the  title?  Instead  of  this,  he  joins  his  wife  in  a  con- 
veyance to  Samuel  and  Tench,  which  is  in  entire  inconsisten- 
cy with  the  idea  of  a  previous  sale  by  him.  The  object  of 
this  deed  was  undoubtedly  to  pass  to  the  trustees  the  dower  of 
Mrs.  Ringgold,  that  Samuel  might  be  enabled  to  give  an  un- 
incumbered  title  to  Tench,  when  the  purchase  money  should 
have  been  paid  by  him  to  Samuel.  In  any  light  in  which  this 
transaction  can  be  viewed,  a  joint  responsibility  grows  out  of 
it.  If  the  estate  passed  by  the  deed  of  179S,  there  was  a 
breach  of  trust  in  Samuel  in  selling  to  his  co-trustee,  which 
would  make  him  responsible;  and  if  contracted  for  by  Thomas 
with  Tench,  before  the  execution  of  that  instrument,  it  still 
passed  the  legal  estate  to  the  trustees,  and  it  was  Samuel"s 
duty  to  have  collected  it;  and  having  not  only  failed  to  do  so, 
but  having  made  no  effort  for  this  purpose  at  any  period  of  the 
existence  of  the  trust,  but  suffered  it  to  lie  in  his  hands  when 
he  knew  the  trust  was  abused,  in  consequence  of  a  failure  on 
Tench's  part  to  apply  the  amount  of  this  purchase  money  to 
the  payment  of  the  debts  of  Thomas  Ringgold,  he  has  clearly 
made  himself  responsible  equally  with  his  co-trustee. 

The  joint  responsibility  of  the  respondents  for  the  sale  of  the 
personal  property  in  November,  1807,  on  the  eastern  shore,  is 
a  question  which  has  also  been  submitted  to  the  consideration  of 
the  court.  The  bill  charges  the  trusts  under  the  deeds  of  1798 
and  1807,and  the  answers  of  the  defendants  admit  the  trusts  con- 
fided to  them;  and  in  their  various  exhibits,  which  are  made 
parts  of  their  answers,  they  return  accounts  of  their  sales  of 
the  personal  property  as  made  under  these  deeds.  It  seems  to 
have  been  considered  by  the  trustees,  as  far  as  the  evidence  in 
the  cause  will  enable  this  court  to  judge,  that  the  trustees  con- 
ceived they  had  power,  under  the  deed  of  1807,  to  sell  the  per« 
VOL.  i.  10 


CASES  IN  THE  COURT  OF  APPEALS 


RlNGGOLI)  V.  RlSGCOLD. 1826. 


sonal  property  which  was  disposed  of  by  them,  from  Hunting- 
field  and  HopewelL  But  it  is  very  clear,  that  a  deed  made  on 
the  18th  of  December,  1807,  could  transfer  no  right  to  proper- 
ty which  they  had  sold  on  the  27th  of  the  November  preced- 
ing. Thomas  Ringgold,  at  that  period,  had  no  interest  to  con- 
vey. Samuel  and  Tench  had  sold  it  all  previously  to  various 
purchasers,  in  his  presence,  or  with  his  express  approbation,  a^ 
a  time,  too,  when  he  had,  for  aught  that  appears  in  the  cause,  a 
complete  right  to  it;  for  by  the  deed  of  1798,  no  personal  pro 
perty  was  conveyed,  and  we  cannot  notice  the  deed  of  January 
1807,  as  it  is  not  evidence  in  any  manner  in  this  cause.  It  is 
very  probable  that  these  sales  were  all  made  in  anticipation  of 
the  deed  of  December,  1807,  which  was  to  follow,  and  did  fol 
low  a  few  days  after  the  sales.  That  Samuel  and  Tench  were 
trustees  of  this  property,  must  be  inferred  from  all  the  evi- 
dence. They  exercised  dominion  over  it;  they  sold  it  with  the 
assent  of  Thomas;  they  took  bonds  from  the  purchasers  in 
their  own  names;  they  collected  a  part  of  the  purchase  mone)r, 
and  they  have  proffered  themselves  ready  to  account  for  these 
sales,  and  have  made  a  return  thereof  as  having  been  made  by 
them  as  trustees.  These  sales  not  being  then  within  either 
deed  of  trust,  must  have  been  made  under  some  conventional 
arrangement,  either  verbal  or  written,  which  is  not  before  the 
court,  and  which  is  only  to  be  inferred  from  the  transactions  of 
the  parties.  That  such  a  trust  may  be  asserted  and  enforced  in 
a  court  of  equity,  cannot  be  questioned.  But  the  difficulty  on 
the  part  of  the  complainants,  arises  from  the  circumstance,  that 
there  is  no  allegation  in  the  bill  which  covers  or  affects  any 
other  trusts  than  those  of  October,  1798,  and  of  December, 
1807.  A  court  cannot  be  aided  in  the  construction  of  any 
agreement  by  the  acts  which  the  parties  may  have  done  under 
it,  nor  is  a  party  bound  by  any  construction  which  he  may  have 
put  upon  the  instrument.  The  answer,  therefore,  which  pre- 
sents a  list  of  the  negroes  and  specific  articles  of  personal  pro- 
perty sold  on  the  eastern  shore,  also  discloses  the  fact  that  the 
sales  were  made  anterior  to  its  execution,  and  the  evidence  con- 
firms the  answer  in  this  respect  Had  these  sales  been  actually 
made  in  anticipation  of  the  deed  of  1807,  and  resting  on  the 
agreement  of  the  parties  that  they  should  be  confirmed  by  that 


OF  MARYLAND*  75 


RlKGGOLD  V.  RlHOOOLD. 1826. 


instrument,  and  that  their  responsibility  for  the  proceeds  of 
these  sales  should   be  governed  by  its  stipulations,  which  we 
have  no  doubt  from  the  evidence  was  the  fact;  had  some  ver- 
bal or  other  trust  existed  under  which  they  were  made,  or  had 
Samuel  exercised  dominion  over  the  property  after  the  execu- 
tion of  the  deed  of  January,  1807,  and  proceeded  to  sell  the 
property  as  trustee  in  virtue  of  its  stipulations,  as  if  it  had  been 
a  valid  and  operative  transfer,  and  had  under  these  circumstan- 
ces joined  Tench  with  him  as  agent,  or  associated  him  as  a  co- 
trustee  with  the  assent  of  the  parties,  in  anticipation  of  a  deed 
of  trust  subsequently  to  be  executed,  it  was  surely  important 
that  each  or  all  of  these  facts,  a«  the  truth  might  warrant,  should 
have  formed  substantive  allegations  in  the  bill;  or  if  either 
fraud  or  mistake  had  given  the  deed  of  December,  1807,  the 
shape  which  it  now  assumes,  contrary  to  the  understanding  and 
agreement  of  the  parties,  that  should  also  have  been  averred. 
A  court  of  equity  must  always  decree  upon  the  allegations  of 
the,  complainants.     It  is  never  justified  in  going  beyond  them. 
Such  a  course  would  violate  the  fundamental  principles  of 
pleading,  and  would  work  a  surprize  on  the  respondents.    Had 
the  respondents  admitted  a  sale  under  these  deeds,  without 
disclosing  the  fact  of  the    anterior  sales,  it  might  be  well 
questioned  whether  what  had  been  thus  in  pleading  explicitly 
admitted,  could  be  contradicted  by  the  adduction  of  evidence 
on  their  part,  showing  that  the  sales  were  anterior  to  the  deed. 
But  having  averred  the  sales  previous  to  the  deed,  although 
they  state  that  the  sales  have  been  made  by  them  as  trustees, 
they  are  not  estopped  and  precluded  from  demanding  whether 
a  legal  responsibility  grows  out  of  the  deeds  of  trust  for  sales 
previously  made  by  any  just  construction  thereof.     We  are 
therefore  of  opinion,  that  in  this  cause,  whatever  under  other 
circumstances  might  be  the  right  of  the  complainants'  demands 
against  the  respondents  as  trustees  for  sales  of  the  personal 
property  on  the   eastern  shore,   this  court,  in  the  state  of 
these  proceedings,  cannot  decree  against  them  for  the  amount 
of  those  sales.     In  this  respect,  the  rights  of  the  parties  are  re- 
served for  the  future  consideration  of  a  court  of  equity,  should 
the  complainants  deem  that  their  interest  demands  an  investi- 
gation. 


76  CASES  IN  THE  COURT  OF  APPEALS 

RlXGBOLD  V.  RlNOGOI.!). 1826. 

But  although  the  sales  ot  the  personal  property  cannot  be  co- 
vered by  any  allegations  in  the  bill,  this  .jourt,  in  this  proceed- 
ing, will  do  equity  between  the  parties  as  far  as  is  consistent 
with  the  established  principles  of  chancery  proceedings.  It 
appears  from  the  evidence  in  the  cause  as  furnished  by  the  an- 
swers of  the  defendants,  (see  their  various  accounts  filed  as  ex- 
hibits to  their  answers,)  that  Samuel  Ringgold  has  received 
the  sum  of  $1,117  83,  part  of  these  sales,  and  that  Tench 
Ringgold  has  received  the  residue  from  the  different  purchas- 
ers. Samuel  Ringgold  has  applied  the  sum  thus  received  to 
debts  of  the  estate,  and  Tench  Ringgold  has  paid  debts  and 
made  disbursements  to  a  considerable  amount  after  the  sales  of 
the  personal  property.  We  shall  therefore  consider,  so  far  as 
Tench  has,  after  the  sales  of  the  personal  property,  paid 
debts  and  made  disbursements  for  the  estate  of  Thomas,  that 
they  were  made  from  such  receipts.  For  all  the  residue  of 
Tench's  receipts,  which  will  be  unexhausted  by  such  an  appli- 
cation, and  for  the  amount  of  his  own  purchases  at  the  sales  of 
1807,  all  of  which  remains  uneollected,  accountability  must  be 
sought  by  the  complainants  in  a  new  proceeding.  We  con- 
ceive from  the  evidence  in  the  cause,  that  although  these  sales 
were  not  within  <he  terms  of  the  trust  of  1807,  charged  in  the 
bill,  yet  they  were  in  their  hands  as  trustees  for  the  payment 
of  debts,  as  well  as  the  property  actually  passing  by  that  con- 
veyance, and  being  so,  and  their  accounts  showing  generally 
that  debts  were  paid  without  designating  out  of  what  trust  fund 
particularly  they  were  paid,  that  for  the  purpose  of  effectuating 
justice  between  the  parties,  we  have  a  right  to.  consider  that  the 
debts  and  disbursements  after  the  saks  of  1807,  were  paid  by 
each  trustee  to  the  amount  of  actual  receipts  by  each  from  these 
sales,  out  of  the  money  received  by  them  from  such  sources. 

We  consider  the  respondents  as  properly  chargeable  for  the 
amount  received  from  Thomas  Ringgold's  securities.  These 
securities  amounting  to  the  sum  of  $8,191  47  were  received 
in  the  years  1799,  1800,  1801,  1803,  and  1805,  as  appears  by 
the  accounts  exhibited  and  receipts  offered  in  evidence.  The 
complainants  allege,  that  at  the  time  of  the  execution  of  the 
deed  of  trust  of  1798,  authority  was  given  by  Thomas  Ring- 
gold  to  the  respondents,  to  collect  all  debts  due  to  him,  (to  be 


OF  MARYLAND*  77 


RlNGGOtD  V.  HlHGGOLD. 1826. 


applied  to  the  payment  of  his  debts,  and  that  in  virtue  of  such 
authority,  large  sums  of  money  were  received  by  them)  and 
they  pray  an  account  thereof.  This  allegation  is  not  directly 
answered,  otherwise  than  by  their  exhibited  accounts,  and  by 
testimony  from  which  it  appears,  that  outstanding  debts  at  that 
time,  due  to  a  large  amount,  were  by  them  collected  as  trus- 
tees. These  facts  justify  us  in  saying  that  such  authority  was 
given,  and  that  they  acted  in  regard  to  them  as  joint  trustees. 

These  respondents  are  also  chargeable  with  the  rents  receiv- 
ed for  the  lands  of  Thomas  Ringgold.  The  legal  estate  passed 
in  these  estates  to  the  trustees  by  the  deed  of  1798.  They 
were  rented  out  and  the  rents  received,  and  should  have  been 
applied  to  the  purposes  of  the  trust. 

The  subject  of  interest  forms  a  very  important  item  in  the 
controversies  between  the  parties — the  respondents  insisting 
that  interest  ought  not  to  be  charged  against  them,  while  the 
complainants  contend,  that  they  should  be  allowed  compound 
interest,  or  if  not,  that  the  chancellor  has  erred  in  allowing  a 
rest  of  six  months  from  the  receipt  of  monies  by  the  trustees 
free  of  interest. 

As  it  regards  the  balance  due  from  Tench  for  the  Washing- 
ton lands,  there  can  be  no  pretence  for  exemption  from  interest; 
he  was  to  pay  for  them  at  a  stipulated  period  and  has  failed  to 
do  so;  and  it  having  been  determined  that  there  is  a  joint  re- 
sponsibility for  the  principal,  there  is,  of  course,  a  joint  respon- 
sibility for  the  interest. 

As  it  regards  the  receipts  of  Tench  between  the  execution  of 
the  two  deeds  of  trust,  which  were  not  applied  by  him  to  the 
payment  of  debts,  it  may  be  remarked  that  it  was  his  duty  to 
apply  them  to  such  outstanding  claims  as  were  then  due  from 
the  cestui  qve  trust,  or  if  he  had  detained  them,  to  have  met 
the  outstanding  judgment  of  J.  J.  Maund,  to  have  placed  those 
monies  in  a  situation  where  they  could  never  have  met  with 
those  accidents  to  which  every  individual's  fortune  may  be 
liable.  He  should  at  least  have  shown  us,  that  the  funds  were 
kept  separated  from  the  mass  of  his  estate.  Could  this  have 
been  done,  this  court  would  have  been  disposed  to  shew  the 
utmost  indulgence.  The  pressing  character  of  the  outstanding 
Sj  could  not  but  be  known  during  this  period  of  Samuel, 


78  CASES  IN  THE  COURT  O*  APPEALS 

HlKGGOLl)   V     RlNOGOLD. 1826. 

for  he  was,  during  the  most  of  this  time,  advancing  from  his 
private  estate  to  meet  them ;  yet  he  makes  no  effort  to  obtain  the 
funds  in  Tench's  hands  to  be  applied  to  these  objects.  He  must 
have  known  that  Tench  had  funds;  for  he  was  permitted  to  col- 
lect debts  on  the  eastern  shore,  and  if  he  did  not  know,  he 
was  surely  bound  to  know  and  to  watch  over  the  conduct  of  his 
co-trustee.  Upon  such  sums,  they  must  be  conjointly  charged 
with  interest. 

For  the  amount  due  from  them  on  account  of  the  Hopewell 
estate,  they  are  certainly  chargeable  with  interest.  That  they 
invested  it  in  property  unproductive,  can  furnish  no  ground  for 
exemption,  because  they  acknowledgedly  transcended  their 
power  and  violated  their  legal  duties  and  obligations.  We  must 
consider  them  as  having  the  value  of  this  estate  in  hand  at  the 
lime  of  the  sale;  and  the  reason  assigned  for  the  previous  lia- 
bility, will  apply  to  them  in  this  particular,  if  the  sales  were 
even  made  under  the  deed  of  1798,  where  the  obligations  oi' 
the  trustees  to  pay  interest  is  not  so  entirely  clear  and  apparent 
as  under  the  deed  of  1807.  But  the  sale  may  and  ought  to  be 
considered  as  made  under  the  latter  deed.  It  is  true,  the  con- 
tract of  sale  was  made  before,  but  they  derived  their  power  and 
authority  to  perfect  it  under  the  deed  of  1807,  for  that  conferred 
the  power  to  pass  it  free  from  the  incumbrance  of  Mary  Ring' 
gold's  dower;  and  the  title  of  R.  S.  Thomas,  was  in  fact,  made 
and  perfected  after  and  under  that  instrument,  the  conveyance  to 
R.  S.  Thomas,  having  been  made  in  1808.  Now,  what  are  the 
stipulations  of  the  deed  of  December  1807,  so  far  as  they  relate 
to  the  present  question?  "That  the  whole  estate  thereby  con- 
veyed, should  be  immediately  sold,  and  after  paying  all  the  just 
debts  of  Thomas  Ringgold,  the  proceeds  should,  as  received, 
be  invested  in  government,  bank,  or  turnpike  stock,  and  the  in- 
terest or  dividends  to  be  paid  in  the  proportions  therein  men- 
tioned; part  to  Mrs.  Ringgold  during  the  joint  lives  of  herself 
and  Thomas;  part  to  Thomas  during  his  life,  and  part  to  be 
applied  to  the  support  and  education  of  the  children  of  Thomas 
and  Mary,  yearly  and  half-yearly,  as  the  same  may  be  receiv- 
ed ;  and  that,  until  the  proceeds  of  the  sale  shall  be  invested  in 
stock,  the  interest  arising  therefrom,  shall  be  paid  and  applied, 
when  and  as  it  is  received  in  the  proportions  therein  designated,. 


OF  MARYLAND.  79 


r.  KINGGOLD.  —  1826. 

to  the  cestui  qne  trusts."  Having  the  proceeds  of  this  estate 
in  hand,  it  was  their  imperative  duty  to  have  invested  unless  a 
portion,  or  the  whole  ot  them,  had  heen  demanded  by  acknow- 
ledged debts  of  Thomas  Ringgold.  The  deed  was  intended 
as  a  family  provision,  and  the  debts  then  outstanding,  except 
Jfaund's  judgment,  were  inconsiderable.  By  transferring  the 
legal  estate  to  the  trustees  in  all  this  property  they  placed  their 
dependence  upon  its  productiveness  in  their  hands  for  a  sup- 
port. They  parted  with  the  income  which  it  furnished  in  con- 
sideration, and  evidently  under  the  expectation,  that  it  would  b« 
immediately  invested.  It  had  been  represented  nearly  a  year 
prior  by  one  of  the  trustees,  that  the  estate  was  nearly  disen- 
cumbered of  debts,  and  hopes  were  entertained  that  Maund's 
claim,  which  was  then  depending  in  court,  would  be  perpetual- 
ly enjoined.  It  had  been  litigated  at  that  period  for  several 
years  and  no  reasonable  expectation  could  then  be  entertained 
that  it  would  be  very  speedily  brought  to  a  close.  Under 
these  circumstances,  would  the  trustees  have  been  justified  in 
laying  by  the  money  and  patiently  waiting  for  the  event  of  a 
protracted  chancery  suit;  the  debt  daily  growing  larger  by  ac- 
cumulating interest,  the  funds  remaining  idle  and  stationary  > 
and  the  family  suffering  for  want  of  the  means  of  subsistence, 
depending  on  the  charity  of  their  relatives?  It  never  could 
have  been  the  intention  of  the  parties,  that  the  investment  in 
stocks  should  await  the  determination  oft/".  .7.  Maund's  judg- 
ment; or  that  the  family  should  for  a  moment  be  left  without 
support,  for  the  interest  on  the  sales  arc  directed  to  be  paid 
them  until  the  funds  are  invested;  thus,  looking  to  a  constantly 
accruing  interest,  and  negativing  every  idea  of  any  intended 
permission,  that  they  should  lie  idle  for  such  a  purpose.  Had 
the  money  then  remained  in  their  hands,  they  would  have  been, 
grossly  negligent  in  not  investing  it.  In  such  a  case  the  rule 
is  settled,  that  trustees  are  chargeable  with  interest.  Trevcs 
vs.  Townshend,  1  Brown's  Ch.  Rep.  384.  Rock  vs.  Hart, 
11  Ves.  58;  and  the  rule,  Chancellor  Kent  declares  to  be  found- 
ed in  justice  and  good  policy,  as  tending  both  to  prevent  abuse 
and  indemnify  against  negligence.  Dunscomb  vs.  Dunscomb, 
1  Johns.  Cha.  Rep.  504.  508. 

Where  the  trustee  is  directed  to  invest  funds  and  to  reinvest 


SO        CASES  IN  THE  COURT  OF  APPEALS 

RlNGGOLI)  V.  RlNCGOLD. — 1826. 

the  dividends,  or  interest,  or  in  other  words,  where  the  trust 
directs  an  accumulation,  and  the  trustee  has  used  the  funds,  com- 
pound interest  will  be  allowed,  as  was  done  in  the  case  of  Ra- 
phael vs.  Boehm,  11  Ves.  92,  108,  109;  and  S.  C.  13  Ves.  407, 
590;  or  where  he  has  used  the  trust  money,  or  employed  it  in 
his  trade  or  business,  he  shall  also  be  charged  in  the  same  man- 
ner as  was  decreed  in  Schieffelin  vs.  Stewart,  and  others,  I 
Johns.  Cha.  Rep.  620.  The  grounds  of  this  allowance,as  is  appa- 
rent from  these  cases,  is  founded  on  the  gain  or  presumed  gain  ot 
the  trustees,  and  that  the  cestui  que  trust,  may  be  indemnified 
by  the  efforts  of  the  court  in  this  way,  to  reach  their  profits  or 
presumed  profits.  But,  in  this  case,  although  the  cestui  que. 
trusts  could  not,  perhaps,  be  indemnified  by  a  less  allowance 
than  compound  interest,  yet  the  circumstances  forbid  the  pre- 
sumption of  a  gain  on  the  part  of  the  trustees;  although  the  in- 
vestment was  in  violation  of  the  trust,  it  was  done  doubtlessly 
with  the  best  intentions;  with  no  views  whatever,  of  reaping 
from  the  transaction,  any  benefit  to  themselves,  but  declaring 
that  the  profits,  whatever  they  might  be,  if  any,  should  be  for 
the  benefit  of  the  trust  estate.  Believing  such  to  have  been 
their  motives  and  views,  public  policy  forbids  that  courts  of 
justice  should  pursue  a  course  which  would  have  a  tendency  to 
deter  persons  from  accepting  offices  frequently  so  necessary  for 
mankind. 

The  trustees  have  been  allowed  on  the  authority  of  the  case 
of  Dunscomb  vs.  Dunscomb,  1  Johns.  Cha.  Rep.  510,  a  rest 
of  six  months  without  interest  on  their  receipts.  This  is  al- 
lowed as  a  reasonable  time  within  which  to  pay  or  invest  the 
funds.  There  would  be  great  reason  in  the  rule,  had  they  ac- 
tually invested  or  made  efforts  to  invest;  but  in  this  case  no 
dispositions  were  ever  manifested  to  make  such  an  application 
of  the  money  as  the  trust  contemplated.  Debts  due  from  the 
estate,  were  in  many  instances  accumulating  interest  with  the 
addition  of  costs,  while  funds  were  suffered  to  lie  idle  in  the 
hands  of  one  of  the  trustees,  or  were  diverted  to  objects  of  ex- 
penditure foreign  to  the  trust.  To  allow  this  rest,  would  in  our 
opinion  be  doing  injustice  to  the  cestui  que  trusts. 

Part  of  the  account  of  Simon  Wilmer,  together  with  many 
other  charges  against  the  estate,  were  allowed  by  the  auditor  in 


OF  MARYLAND.  81 


UlNGOOLn  V.  RtSGOOLD. 1826. 


his  accounts,  and  sanctioned  by  the  Chancellor's  decree,  for 
which  no  vouchers  were  produced,  and  these  allowances  have 
been  made  the  respondents  from  the  statement  in  their  answers 
alone,  by  which  they  represent  these  disbursements  to  have 
been  made.  The  general  rule  that  an  answer  responsive  to  a 
bill,  is  evidence  for  a  respondent,  is  a  well  established  and  set- 
tled principle.  But,  the  answer  of  a  defendant,  where  it  as- 
serts a  right  affirmatively  in  opposition  to  the  plaintiff's  de- 
mand, is  not  evidence.  Beckwith  vs.  Butler,  1  Wash.  224. 
Payne  vs.  Coles,  1  Munford,  373.  An  answer  will  not  sup- 
port a  matter  set  up  in  avoidance  or  discharge  where  the  matter 
of  avoidance  is  a  distinct  fact.  In  such  case,  the  defence  must 
be  proved.  Mr.  Evans  in  his  appendix  to  Pothier  on  Obliga- 
tions^ 157,  lays  down  the  following  principle:  That  where  the 
answer  is  replied  to,  the  whole  is  put  in  issue,  and  the  defen- 
dant must  support  by  proof,  all  the  facts  upon  which  he  means 
to  insist,  while  the  complainant  may  rely  upon  every  fact  ad- 
mitted, which  he  conceives  to  be  material,  without  being  bound 
to  the  admission  of  others;  and  this  rule  he  deduces  from  a 
case  cited  in  Gilbert,  51,  which,  as  it  is  a  leading  case,  it  will 
be  necessary  to  notice.  There,  the  defendant,  by  his  answer, 
which  was  put  in  issue  by  the  complainant's  replication,  admit- 
ted as  executor,  that  the  testator  had  left  £1100,  and  said,  that  af- 
terwards, the  testator  gave  a  bond  for  £1000,  and  the  testator 
gave  him  the  other  £100;  as  there  was  no  evidence  but  the  de- 
fendant's admission  for  the  receipt,  it  was  contended  that  he 
ought  to  find  credit  when  he  swears  to  his  own  discharge;  but 
it  was  resolved  by  the  court,  that  when  an  answer  was  put  in 
issue,  what  was  confessed  and  admitted  need  not  be  proved, 
but  that  it  behoved  the  defendant  to  make  out,  by  proof,  what 
was  insisted  upon  by  way  of  avoidance.  Chancellor  Kent  de- 
clares that  this  rule  is  well  settled  in  chancery  proceedings,  and 
recognizes  and  adopts  it  in  the  case  of  Hart  vs.  Ten  Eyck,  2 
Johns.  Ch.  Rep.  62,  where  all  the  learning  on  this  subject  is 
ably  collected  and  reviewed,  and  where  it  was  determined  that 
on  a  bill  to  account,  the  answer  is  no  evidence  of  disburse- 
ments. The  cases  above  cited  from  Washington  and  Man- 
ford's  Reports,  were  also  bills  in  chancery  against  executors  to 
account,  and  where  discharges  alleged  in  the  answers  were  held 

VOL.    1  11 


82        CASES  IN  THE  COURT  OP  APPEALS 

RlNGGOlD  V.  RlNGOOLD. 1826. 

to  be  of  no  avail  unless  supported  by  proof.  The  doctrine 
may  then  be  considered  as  settled,  that  on  a  general  bill  to  ac- 
count, the  answer  is  no  evidence  of  disbursements,  notwith- 
standing it  is  said  that  the  Court  of  Errors  of  the  State  of 
New-  York,  overruled  on  appeal  the  judgment  of  Chancellor 
Kent  on  this  question.  7  Johns.  Ch.  Rep.  General  Index, 
tit.  Evidence,  75,  pi.  11.  That  tribunal,  from  its  peculiar 
structure,  does  not  appear  to  be  calculated  for  legal  investiga- 
tion, and  its  judgments  cannot  outweigh  the  opinion  of  Chan- 
cellor Kent,  fortified  as  it  is,  by  numerous  cases  of  established 
authority.  Butj  it  is  said,  there  being  a  call  here  for  the  amount 
of  disbursements,  and  debts  paid,  that  this  case  is  varied  front 
those  which  have  been  cited.  It  is  true,  there  is,  from  aught 
that  appears,  a  variance  in  form,  but  there  is  none  in  substance. 
For,  a  prayer  that  the  defendant  shall  account,  is  in  effect  a  call 
on  the  defendant,  to  state  in  his  answer,  not  only  his  receipts, 
but  his  disbursements,  so  that  the  complainants  may  have  an 
opportunity  of  putting  them  in  issue;  and  without  which,  in- 
deed, the  defendant  himself  could  give  no  evidence  of  them. 
Nothing  more  is  demanded  in  the  interrogatories  in  this  bill, 
than,  under  a  general  call  to  account,  the  defendant  would  have 
been  obliged  to  answer.  It  is  nothing  more  in  either  case,  than 
a  demand  on  the  defendant  to  show  his  receipts  and  the  legal 
evidences  of  his  expenditures,  in  conformity  with  the  trust. 
Nor  is  there  any  hardship  in  the  rule.  Men  of  ordinary  care 
preserve  the  evidences  of  their  payments,  and  to  say  that  the 
respondents  should  have  done  it,  is  demanding  from  them  no- 
thing extraordinary  or  out  of  the  usual  course  of  human  trans- 
actions. 

The  establishment  of  a  contrary  doctrine  would  lead  to  dan- 
gerous consequences,  and  would  be  calculated  to  render  trusts 
valueless,  by  giving  to  trustees,  executors  and  guardians,  the 
power  on  their  own  oaths,  to  exempt  themselves  from  all  re- 
sponsibility. The  rule  then  may  be  stated,  (and  it  is  the  good 
sense  of  all  the  cases  cited  in  the  argument,)  that  in  all  cases 
where  a  complainant  seeks  a  discovery  and  relief,  and  to  make 
out  his  case,  applies  himself  to  the  conscience  of  the  defendant, 
if,  in  his  answer,  the  liability  is  once  admitted,  there  can  be  no 
•escape  from  it  but  by  proof.  It  is  true,  every  thing  which  he 
says,  with  regard  to  the  creation  of  that  liability,  must  be  taken 


OF  MARYLAND. 


RlNGGOLI)  V   RINGGOLD. 1826. 


together;  detached  sentences  cannot  be  used  against  him,  but 
every  thing  which  he  says,  relative  to  his  original  liability,  is 
properly  in  evidence.  This  doctrine  will  be  found  to  be  sup- 
ported in  Lady  Ormond  vs.  Hutchinson,  13  Ves.  53,  54,  and 
by  the  cases  above  referred  to. 

The  complainants,  by  their  supplemental  bill,  seek  to  make 
the  respondents  accountable  for  nine  negroes,  taken  by  Samuel 
Ringgold,  at  the  stipulated  price  of  $2000.  The  answer  of 
Samuel  admits  that  they  were  so  taken,  but  denies  accounta- 
bility, as  they  were  taken  at  a  valuation,  in  part  payment  of 
large  sums  of  money,  paid  and  advanced  by  the  respondent,  to 
Thomas  Ringgold,  and  that  a  balance  is  still  due  him,  of  up- 
wards of  $3500.  Samuel  Ringgold,  in  Exhibit  No.  1,  filed 
with  his  answer  to  the  original  bill,  has  charged  Thomas  Ring- 
gold  with  the  payment  to  D.  and  W.  M'Mechen  of  the  sum 
33574. 

The  court  are  of  opinion,  that  the  respondents  cannot  be 
charged  with  the  valuation  of  these  negroes.  It  is  in  evidence, 
that  Thomas  Ringgold  admitted,  that  they  were  taken  in  part 
satisfaction  of  a  debt,  due  from  him  to  Samuel,  in  the  year 
1806;  at  a  time,  when  from  aught  that  appears  in  evidence,  he 
was  exercising  dominion  over  his  personal  estate,  and  when  no 
deed  of  trust,  which  the  court  in  this  cause  can  notice,  covered 
it.  As  it  regards  the  sum  of  $3574,  which  Samuel  Ringgold 
claims  credit  for,  the  court  deem  it  unnecessary,  in  pronouncing 
their  judgment,  to  recapitulate  the  testimony  of  the  various 
witnesses,  who  have  been  examined  on  the  subject.  Nor  do 
they  deem  it  necessary  to  determine  the  question,  as  to  the 
competency  of  Tench  Ringgold's  testimony,  for  it  is  consi- 
dered, that  there  is  enough  in  the  record  without  it,  to  justify 
the  allowance. 

It  is  contended,  that  this  court  is  not  competent  to  allow 
commissions,  as  a  compensation  to  the  trustees  for  their  trouble. 
In  England,  a  liberal  indemnity  is  allowed  to  trustees  for  their 
expenses,  but  nothing  as  a  compensation,  unless  founded  in  po- 
sitive agreement  between  the  parties.  This  rule  appears  to  be 
applicable,  not  only  to  trustees  of  every  description,  but  to  ex-* 
ecutors.  They  are  considered  as  confidential  offices,  gratui- 
tously undertaken  from  motives  of  friendship  or  humanity,  and 


CASES  IN  THE  COURT  O*  APPEALS 


RlNGGOLD  V.  RlNGGOLD. 1826 


without  views  of  personal  benefit  or  profit.  Yet,  the  English 
courts  grant  per  diem  allowances,  not  in  the  nature  of  a  com- 
pensation, but  under  the  name  of  an  indemnity.  The  differ- 
ence then,  in  truth,  is  only  in  the  mode  of  allowance,  not  in 
the  principle.  It  is  in  fact,  a  mere  difference  in  name.  Com- 
missions in  a  case  like  this,  might  very  fairly  be  considered  as 
only  extending  a  just  and  reasonable  indemnity  for  time  be- 
stowed in  the  management  of  the  concerns  of  others.  But  if, 
indeed,  there  was  a  difference  in  principle,  this  court  would 
feel  themselves  justified  in  granting  reasonable  commissions. 
Our  statutes  allow  commissions  to  executors,  administrators, 
guardians  and  trustees,  under  judicial  sales,  and  by  analogy  to 
these  statutes,  or  by  an  equitable  construction  of  them,  the  al- 
lowance may,  and  ought  to  be  made  in  this  case.  But,  al- 
though the  general  claim  to  commissions  is  admissible,  we  con- 
ceive that  none  should  be  allowed  for  the  sale  of  Prospect  Hill. 
The  trustees  have  paid  N.  Brice,  their  agent,  the  only  commis- 
sions to  which  they  were  entitled  on  this  sale. 

By  the  will  of  Mary  Ringgold,  bearing  date  in  October  1803, 
certain  legacies  were  bequeathed  to  Samuel  and  Tench  Ring- 
gold,  in  trust  for  Thomas  Ringgold;  with  these  legacies  the 
respondents  have  charged  themselves  in  their  account  accom- 
panying their  answers,  but  have,  at  the  same  time,  referred  to 
the  source  from  which  they  emanate.  There  is  no  allegation, 
in  the  bill  of  complainant  or  supplemental  bill,  which  reaches 
this  trust,  and  they  cannot  in  this  proceeding,  be  charged  with 
them,  either  jointly  or  severally,  but  the  equity  of  the  com- 
plainants, in  respect  thereof,  is  reserved. 

The  court  have  appointed  an  auditor  for  the  purpose  of  stat- 
ing an  account  between  the  parties,  upon  the  principles  contain- 
ed in  this  opinion,  and  will  direct,  that  his  costs  shall  be  taxed 
in  this  proceeding.  From  the  account  thus  audited,  it  ap- 
pears that  the  sum  of  $39,318  54,  with  interest  on  the  sum  of 
$28,576  87,  part  thereof,  from  the  1st  of  July  1822,  is  due 
from  the  respondents  to  the  complainants,  which  will  be  de- 
creed to  be  paid  into  the  court  of  chancery,  to  be  distributed  or 
invested  under  the  authority  thereof,  according  to  the  rights  of 
the  respective  complainants. 

We  concur  with  the  chancellor  in  awarding  costs  to  the  com- 


OF  MARYLAND.  85 


KlXGOOLD  V.  KlNGGOLD. 1826. 


plainants,  and  are  of  opinion,  as  the  decree  of  that  court  will 
be  entirely  reformed,  that  each  party  pay  their  own  costs  in 
this  court. 

BUCHANAN,  Ch.  J.  dissented. 

Decreed,  That  the  decree  of  the  court  of  chancery  given  and 
rendered  in  these  causes,  be  reversed,  except  as  to  the  amount 
and  sum  of  money,  hereby  decreed  to  be  payable  to  the  appel- 
lees in  the  first  and  the  appellants  in  the  second  of  these  causes. 
And  this  court  proceeding  to  pronounce  such  decree  in  the 
premises,  as  the  court  of  chancery  ought  to  have  pronounced, 
Decreed  also,  that  there  is  due  from  the  appellants  in  the  first 
and  appellees  in  the  second  of  these  causes,  and  that  they  do 
pay  to  the  appellees  in  the  first  and  appellants  in  the  second  of 
these  causes,  in  the  manner  hereinafter  mentioned,  the  sum  of 
§39,318  54,  with  interest  on  the  sum  of  §28,576  87,  part 
thereof,  from  the  1st  day  of  July  1822,  the  said  sum,  with  in- 
terest, having  been  ascertained  by  and  agreeably  to  the  accounts 
hereto  annexed. 

Decreed  also,  that  the  parties  in  the  said  causes,  pay  their  re- 
spective costs  incurred  by  them  in  this  court  on  their  appeals, 
but  that  the  appellants  in  the  first  and  appellees  in  the  second 
of  these  causes,  pay  to  the  appellees  in  the  first  and  the  appel- 
lants in  the  second  thereof,  the  costs  incurred  by  the  said  ap- 
pellees in  the  first  and  appellants  in  the  second  of  said  causes, 
in  the  court  of  chancery. 

Decreed  also,  that  the  chancellor  make  and  pass  all  necessary 
orders  for  carrying  this  decree  into  full  and  complete  effect,  by 
ordering  and  directing,  that  the  said  sum  of  money,  with  in- 
terest as  aforesaid,  and  the  costs  as  aforesaid,  incurred  in  the 
court  of  chancery,  be  brought  into  the  said  court  of  chancery, 
by  the  appellants  in  the  first  and  appellees  in  the  second  of  these 
causes,  to  be  distributed  and  paid,  under  the  directions  of  the 
chancellor,  to  the  said  appellees  in  the  first  and  appellants  in  the 
second  of  said  causes,  according  to  their  respective  rights  and 
interests;  and  also,  that  the  chancellor  order  and  direct,  that  the 
said  appellees  in  the  first  and  appellants  in  the  second  of  said 
causes,  pay  to  the  auditor  of  the  court  of  chancery  the  sum  of 
$23  33,  allowed  by  this  court  to  the  auditor,  for  his  fees  in. 


86  CASES  IN  THE  COURT  OF  APPEALS 

BOURNE    VS.    MACKAL1.  — 1826. 

auditing  and  stating  the  accounts  directed  by  this  court  to  be 
made  between  the  parties. 

Decreed  also,  that  all  the  equity  and  equitable  rights  and 
claim  of  the  said  appellees  in  the  first  and  appellants  in  the  se- 
cond of  said  causes,  be,  and  the  same  is  hereby  reserved  and 
maintained  to  them,  against  the  said  Samuel  Ringgold  and 
Tench  Ringgold,  or  either  of  them,  as  to  all  or  any  personal 
estate,  of  the  late  Thomas  Ringgold,  or  the  proceeds  of  sales 
or  dispositions  thereof,  of  any  kind,  and  interest  on  such  pro- 
ceeds, except  as  to  so  much  of  such  personal  estate  and  pro- 
ceeds, as  has  by  the  accounts  hereto  annexed,  and  by  this  de- 
cree, been  applied  to  or  in  reference  to  the  payments  and  dis- 
bursements, by  the  said  Samuel  and  Tench,  or  either  ot  them; 
and  also,  that  the  like  equity  be  reserved  and  maintained  to  the 
said  appellees  in  the  first  and  appellants  in  the  second  of  said 
causes,  against  the  said  Samuel  Ringgold  and  Tench  Ring' 
gold,  or  each  or  either  of  them,  as  to  any  legacies  bequeathed, 
to  or  for  the  benefit  of  the  said  Thomas  Ringgold,  by  the  last 
will  and  testament  of  his  mother,  Mary  Ringgold. 

DECREE    REVERSED,    &C. 


BOURNE  vs.  MACK  ALL. — June,  1826. 

"Where  a  record  had  not  been  transmitted  to  the  appellate  court  under  u 
writ  of  error,  that  court  will  lay  a  rule  on  the  plaintiff  in  error,  and 
clerk  of  the  court  to  \vhich  the  writ  was  directed,  to  show  cause,  &c. 
On  the  record  being  filed,  the  court  will,  if  it  be  the  reguhr  term  for 
judgment,  and  no  counsel  appearing  for  the  plaintiff  in  error,  dismiss 
the  writ. 

BOYLE  for  the  defendant  in  error,  had  moved  the  court,  on  a 
former  day  during  this  term,  to  docket  this  action,  and  dismiss 
the  writ  of  error  sued  out  by  the  plaintiff  in  error — no  record 
of  the  proceedings  intended  to  be  removed  having  been  trans- 
mitted to  this  court.  He  filed  in  court  the  certificates  of  the 
register  of  the  court  of  chancery,  and  clerk  of  Culvert  county 
court,  showing  that  a  writ  of  error  had  been  issued  on  the  20th 
of  December  1 824,  commanding  that  a  record  of  the  proceed- 
ings on  a  judgment  rendered  in  Calvert  county  court,  at  Octo- 
ber term  1824,  in  favour  of  the  defendant  in  error  against  the 


OF  MARYLAND.  87 


BOURNE    VS.    MACKAI.L. — 1826. 


plaintiff  in  error,  be  transmitted  to  this  court;  and  that  the  said 
writ  of  error  had  been  produced  to  the  said  county  court.  He 
observed  that  the  condition  of  the  writ  of  error  bond,  prescribed 
by  the  act  of  1713,  ch.  4,  is  that  the  plaintiff  in  error  shall  pro- 
secute his  writ  of  error  to  the  next  court  of  appeals,  and  these 
words  impose  upon  him  the  obligation  of  producing  to  the  court 
of  error,  a  proper  transcript  of  the  record,  and  if  he  fail  to  do 
so  in  due  time,  the  condition  of  the  bond  is  broken,  and  the 
defendant  ought  to  be  permitted  to  docket  the  case,  and  have 
the  judgment  affirmed,  or  a  dismissal  of  the  writ  of  error. 
The  defendant  in  error  cannot  proceed  upon  his  judgment  in 
the  court  below,  because  it  is  stayed  by  writ  of  error  as  a  super- 
sedeas,  and  to  commence  a  new  action  upon  the  writ  of  error 
bond  would  create  unnecessary  and  vexatious  delay.  This  is 
a  new  case  in  this  court,  and  it  is  not  of  much  importance  what 
the  practice  is,  so  that  it  be  settled  and  known.  In  the  supreme 
court  of  the  United  States  the  practice  is,  in  all  cases  where  a 
writ  of  error,  or  an  appeal,  shall  be  to  that  court,  from  any 
judgment  or  decree  rendered  thirty  days  before  the  term  to 
which  such  writ  of  error  or  appeal  shall  be  returnable,  it  is 
made  the  duty  of  the  plaintiff  in  error,  or  appellant,  to  docket 
the  cause,  and  file  the  record  thereof  with  the  clerk  of  that 
court  within  the  first  six  days  of  the  term,  and  on  failure  to  do 
which  the  defendant  in  error,  or  appellee,  may  docket  the  cause, 
and  file  a  copy  of  the  record  with  the  clerk,  and  the  cause  shall 
stand  for  trial  in  like  manner  as  if  the  record  had  been  duly 
filed  within  the  first  six  days  of  the  term;  or  at  his  option,  he 
may  have  the  cause  docketted  and  dismissed  upon  producing  a 
certificate  from  the  clerk  of  the  court,  wherein  the  judgment 
or  decree  was  rendered,  stating  the  cause,  and  certifying  that 
such  writ  of  error  or  appeal  had  been  duly  sued  out  and  allow- 
ed. Randolph  vs.  Harbour,  6  Wheat.  128.  19th  Rule  of 
the  Supreme  Court  of  the  United  States,  1  Wheat.  XVI, 
and  the  32d  rule  of  the  same  court,  6  Wheat.  VI. 

THE  COURT  then  ruled,  that  the  plaintiff  in  error,  and  the 
clerk  of  Calvert  county  court,  show  cause,  on  or  before,  &c. 
(a  day  during  the  term,)  why  a  transcript  of  the  record  of  pro- 
ceedings in  this  case  had  not  been  returned  to  a'id~  filed  in  this 
court,  according  to  the  command  contained  in  the  writ  of  error. 


CASES  IN  THE  COURT  OF  APPEALS 


HURTT  vs.  FISHER. — 1827. 


A  copy  of  this  rule  was  served  on  the  plaintiff  in  error,  and 
on  the  clerk  of  Calvert  county  court,  and  a  transcript  of  the 
record  of  proceedings  was  filed  in  this  court  (a). 

Boyle  now  moved  the  court  to  affirm  the  judgment,  or  dismiss 
the  writ  of  error.  He  stated  that  it  appeared  by  the  transcript 
of  the  record  filed,  that  the  writ  of  error  was  made  returnable 
to  the  last  June  term  of  this  court,  and  that  this  was  the  regu- 
lar term  for  affirming  the  judgment,  it  not  being  a  case  for  ar- 
gument; and  no  counsel  appearing  for  the  plaintiff  in  error, 

WRIT   OP    ERROR    DISMISSED. 

(aj  The  clerk  had,  as  he  stated,  in  due  time  forwarded  a  transcript  of 
the  record  by  the  mail. 


HURTT  vs.  FISHER. — June,  1827. 

An  executor  empowered  to  sell  lands  by  last  will,  having  sold  them  in  1814, 
and  put  the  purchaser  in  possession,  it  was  his  duty,  if  the  sale  was  for 
cask,  payment  being  refused,  to  have  sued;  if  on  credit,  he  ought,  within 
a  reasonable  time,  to  have  obtained  bond  and  security  for  the  purchase 
money;  and  at  all  events  should  have  retained  possession  of  the  land  un- 
til the  necessary  security  was  given.  Omitting  to  sue  at  law  until  1819, 
he  was  prima  facie  guilty  of  gross  negligence,  and  responsible,  as  a 
a  trustee  would  be,  for  the  proceeds  of  the  land  from  the  time  of  the 
sale,  deducting  his  reasonable  expenses  and  commission. 

A  trustee,  with  power  to  sell,  and  having  sold  lands,  being  informed  that 
a  deed  was  required  by  a  purchaser,  to  whom  he  had  sold  and  given  pos- 
session, and  that  the  purchase  money  would  be  paid  when  the  deed 
•was  executed,  doubting  his  right  to  execute  a  deed,  yet  not  obtaining  a 
decree,  ratifying  his  sale  for  4  years,  is  bound  to  show  the  circumstances 
beyond  his  control,  to  justify  this  delay. 

A  trustee  is  responsible  for  money  lost  by  his  gross  negligence. 

Lands  devised  to  be  sold  are  thereby  turned  into  money,  and  considered  in 
equity  as  personal  estate.  A  wife  being  entitled  to  the  proceeds  of 
such  land,  dying  after  a  sale  of  it,  her  husband  surviving,  is  entitled  to 
the  proceeds  thereof. 

APPEAL  from  Kent  County  Court,  sitting  as  a  Court  of 
Equity.  The  bill  filed  by  the  appellee  on  the  13th  of  March 
1823,  stated  that  in  the  year  1814  James  Hurtt  died  seized  and 
possessed  of  a  considerable  real  and  personal  estate,  leaving 
nine  children,  viz.  Mary*  Henry,  Samuel,  Elizabeth,  *ftdaht 
Martha,  James,  Sarah  and  Ruelma,  the  three  last  minors, 
under  the  age  of  21  years.  That  the  said  Hurtt  by  his  last 


OF  MARYLAND. 


HTJRTT  vs.  FISHER. — 1827. 


will,  dated  the  26th  of  January  1813,  directed  that  all  his  lands 
in  Queen-Anne's  and  Kent  counties  should  be  sold  under  the 
direction  of  his  executor  therein  named,  and  upon  such  terms 
as  might  be  most  to  the  benefit  of  his  estate,  and  the  sales  there- 
of to  be  accounted  for  by  his  executor  as  part  oi  his  estate; 
and  also  that  certain  parts  of  his  personal  estate  should  be  sold 
and  accounted  for  by  his  executor  as  part  of  his  estate;  and 
that  all  his  children  should  be  equally  entitled  to  his  estate, 
both  from  the  sales  of  his  land,  and  his  personal  property  of 
every  kind.     And  by  his  said  will  he  constituted  and  appoint- 
ed his  son  Henry  Hurtt,  (the  appellant,)  executor  thereof,  who 
took  upon  himself  the  execution  of  the  said  will.     That  on  or 
about  the  26th  of  August  1814,  Henry  Hurtt  sold  to  James 
Salisbury  the  land  situate  in  Kent  county,  of  which  the  testa- 
tor died  seized,  for  the  sum  of  $14  50  per  acre,  amounting  in 
the  whole  to  $2,784.    That  Henry  Hurtt  permitted  Salisbu- 
ry to  take  possession  of  the  land  without  ever  obtaining  from 
Salisbury  any  security  for  payment  of  the  purchase  money, 
except  Salisbury's  own  responsibility.     That  on  the  29th  of 
August  1819  the  complainant  intermarried  with  Jldah  Hurtt 9 
one  of  the  children  of  the  testator,  and  that  she  died  on  or 
about  the  18th  of  February  1821,  without  leaving  any  child. 
That  Henry  Hurtt  brought  a  suit  in  Kent  county  court  in 
September  1819  against  Salisbury,  for  recovery  of  the  pur- 
chase money  due  for  the  land  sold  as  aforesaid,  and  obtained 
judgment  against  him  at  March  term  1821,  for  $3,223  63,  and 
costs  of  suit.     Li  the  rendition  of  which  judgment  Salisbury 
obtained  an  allowance  for  one-ninth  of  the  original  purchase 
money,  he  having  intermarried  with  one  of  the  daughters  of 
the  testator.     That  Henry  Hurtt  permitted  Salisbury  to  hold, 
possess,  use  and  occupy,  and  to  receive  the  issues  and  profits  of 
the  said  land  from  the  year  1814  until  September  1819,  with- 
out using  any  legal  process  or  means  to  obtain  security  for  pay- 
ment of  the  purchase  money,  or  to  recover  the  purchase  mo- 
ney, or  to  regain  possession  of  the  land.     That  Henry  Hurtt 
had  never  paid  to  the  complainant,  or  to  his  wife  Adah,  any 
money  either  on  account  of  any  rents,  issues  or  profits,   or 
on   account  of  the   purchase  money  of  the  said  land.      The 
bill  then  states,  that  since  the  rendition  of  the  judgment 
vox,,  i.  13 


90         CASES  IN  THE  COURT  OF  APPEALS 

-  »  i         t 

HUETT  vs.  FISHER. — 1827. 

above  mentioned,  H.  Hurtt  had  become  possessed  of  the 
land  which  he  had  sold  to  Salisbury,  and  now  holds  the 
same.  Prayer,  that  H.  Hurtt  may  be  compelled  to  pay  to 
the  complainant  the  one-ninth  part  of  $2,784,  with  interest 
on  such  ninth  part,  &e.  and  for  general  relief.  The  answer 
of  H.  Hurtt,  the  defendant,  (now  appellant,)  admits  the 
death  of  his  father  James  Hurtt,  and  that  he  died  seized  and 
possessed  of  a  considerable  real  and  personal  estate,  leaving 
the  children  named  in  the  bill ;  and  by  his  will  devised  and  dis- 
posed of  his  property  as  stated  in  the  bill,  and  that  the  defen- 
dant took  upon  himself  the  execution  of  said  will,  &c.  That 
he  advertised  for  sale  the  land  mentioned  in  the  will,  and  at  the 
sale  of  the  land  in  Kent  county,  in  August  1814,  Samuel  Boyer 
became  the  purchaser  thereof  for  the  sum  of  $14  50,  per  acre, 
amounting  in  the  whole  to  $2,784.  That  Boyer,  at  the  time 
of  the  sale,  declared  that  he  had  purchased  the  land  for  James 
Salisbury,  to  whom  the  said  land  was  charged  by  the  defen* 
dant,  the  said  Salisbury  being  at  that  time  confined  by  indis- 
position, and  not  able  to  attend  the  sale.  That  Salisbury  was 
then  in  good  credit,  and  considered  and  reputed  to  be  in  good 
circumstances,  and  the  defendant  felt  perfectly  secure.  That 
by  the  conditions  of  the  said  sale,  possession  of  the  land  was 
to  be  given  on  the  1st  of  January  1815,  on  which  day  posses- 
sion was  accordingly  delivered  to  Salisbury,  who  had  seeded 
wheat  on  the  said  farm  in  the  preceding  fall.  That  some  time 
after  the  1st  of  January  1815,  the  defendant  called  on  Salis~ 
bury,  and  requested  him  to  give  his  bond  for  the  purchase 
money  with  such  security  as  the  defendant  should  approve, 
when  he  was  informed  by  Salisbury  that  so  soon  as  the  defen- 
dant would  give  him  a  deed  for  the  land  purchased  by  him,  he? 
would  pay  the  defendant  therefor,  as  he  was  in  constant  ex- 
pectation of  receiving  a  large  sum  of  money  from  the  sales  of 
John  Black's  real  estate;  and  that  the  defendant  was  not  au- 
thorised by  the  said  will  to  give  such  deed.  The  defendant 
having  been  instructed  that  he  was  not  authorised  by  the  said 
will  to  give  a  deed  for  the  land  sold  by  him,  had  a  bill  filed  in 
the  court  of  chancery,  and  obtained  a  decree  in  1818,  authoris- 
ing and  empowering  him  to  make  a  deed  for  the  said  land.  Af- 
ter which  the  defendant  again  called  on  Salisbury  for  paymeqt 


OF  MARYLAND.  91 


HURTT  vs.  FISHER. — 1827. 


of  the  land,  who  promised  to  pay  for  the  same,  but  neglected, 
and  ultimately  refused  to  do  so;  whereupon  the  defendant  in 
1819  brought  suit  against  him  in  Kent  county  court  for  the  pur- 
chase money — the  land  having  been  very  materially  injured 
and  lessened  in  value  since  the  sale  of  it  in  1814;  and  the  de- 
fendant then,  and  still  believing,  that  if  again  sold  it  would  not 
have  brought,  by  a  large  sum,  the  price  at  which  it  had  been 
sold  to  Salisbury.  That  at  September  term  1820,  the  said  suit 
was  referred  to  Ephraim  Vansant,  &c.  by  rule  of  the  court, 
and  the  said  arbitrators  returned  their  award  to  court,  and  judg- 
ment was  thereupon  entered;  which  award  included  the  original 
purchase  money  of  the  land,  with  interest  thereon,  also  an  ac- 
count due  from  Salisbury  to  J.  Hurtt,  the  testator,  and  sundry 
other  transactions  between  the  defendant  and  Salisbury,  and 
for  which  the  defendant  had  also  sued  Salisbury.  From  all 
which  it  will  be  seen,  that  after  deducting  from  the  claims  al- 
lowed to  Salisbury  against  the  defendant  as  executor  and  trus- 
tee of  J.  Hurtt,  deceased,  the  sum  of  $140  75,  for  the  debt 
due  from  Salisbury  to  J.  Hurtt,  deceased,  and  which  debt  the 
defendant,  in  the  settlement  of  the  personal  estate,  had  acknow- 
ledged and  became  answerable  for  as  a  sperate  debt,  there  re- 
mained the  sum  of  $802  40,  to  be  credited  as  a  payment  by 
Salisbury  for  the  purchase  money  of  the  land.  The  answer 
further  stated,  that  at  the  time  of  the  rendition  of  the  judgment 
against  Salisbury,  he  had  become  utterly  unable  to  pay  the 
same;  and  the  defendant,  believing  that  Salisbury  was  insol- 
vent, and  being  unwilling  to  enter  into  a  suit  in  chancery  to 
obtain  a  second  sale  of  the  said  land,  and  to  eject  Salisbury, 
had  at  sundry  times  applied  to  him,  and  did  not  obtain  the  pos- 
session until  shortly  after  harvest  in  July  1822.  That  a  day  or 
two  after  the  defendant  had  taken  possession,  Salisbury  threaten- 
ed to  proceed  against  the  defendant  for  a  forcible  entry  and  de- 
tainer; and  the  defendant  believing  it  to  be  as  unprofitable  as  it 
was  unpleasant  to  enter  into  a  law  suit  with  Salisbury,  agreed 
to  execute,  and  did  execute,  a  paper  purporting  to  release  Salis- 
bury from  the  judgment,  in  consideration  of  his  giving  up  the 
full  possession  of  the  land  to  the  defendant,  and  Salisbury 
thereupon  executed  a  paper,  purporting  to  be  a  release,  &c. 
The  defendant  thereupon  advertised  the  said  land  to  be  sold  o» 


92  CASES  IN  THE  COURT  OF  APPEALS 

HPRTT  vs.   FISHER. — 1827. 

the  7th  of  September  1822,  but  there  being  no  purchaser,  the 
land  was  again  advertised  to  be  sold  on  the  15th  of  March  1823j 
when  the  same  was  sold  to  Edward  Hurtt  at  and  for  the  sum 
of  $7  25,  amounting  in  the  whole  to  $1,435  50.  That  the 
defendant,  finding  that  there  was  very  little  prospect  of  selling 
the  land  for  a  large  price,  had  authorised  Edward  Hurtt  to  bid 
for  the  same  for  and  on  the  behalf  of  him  the  defendant;  and 
JE.  Hurtt,  having  been  the  highest  bidder  and  purchaser,  the 
defendant  has  since  kept  possession  of  the  land,  considering  it 
his  own  property,  and  holds  himself  liable  to  the  devisees  of 
his  father,  or  to  their  proper  representatives,  for  their  several 
and  respective  proportions  of  the  price  at  which  the  same  was 
sold.  The  defendant  denies  that  he  at  any  time  received  any 
other  sum  for  or  on  account  of  the  purchase  money  of  said 
estate  from  Salisbury,  other  than  the  credit  in  the  said  award 
by  the  referrees,  or  for  or  on  account  of  the  profits  of  said  land, 
except  what  money  he  considered  a  fair  price  for  a  crop  of 
wheat  which  was  seeded  on  the  land  in  1822  by  the  defendant, 
and  which  was  reserved  by  the  defendant  at  the  sale  in  1823. 
That  in  giving  a  release  to  Salisbury  the  defendant  relinquish- 
ed his  claim  to  the  sum  of  $161  98,  with  interest  thereon,  of 
his  own  money,  due  from  Salisbury  to  him  for  goods  sold,  it 
being  in  part  of  the  amount  for  which  the  award  and  judgment 
had  been  rendered,  and  that  he  was  induced  to  do  so  from  a 
well  grounded  belief  that  Salisbury  never  would  pay  the  claim, 
and  that  in  the  meantime  the  land  purchased  by  him  would 
regularly  become  less  valuable.  The  defendant  admitted  that 
the  complainant  did  intermarry  with  Jldah  Hurtt,  and  that  she 
is  since  dead,  without  ever  having  had  issue  by  the  complainant. 
He  submits  to  the  court  whether  the  complainant  can  claim  or 
recover  any  part  of  the  money  due  for  the  sale  of  the  said  land, 
or  whether  the  right  and  interest  of  the  said  «idah  in  and  to 
the  same,  does  not  survive  to  the  other  children  and  heirs  at 
law  of  J.  Hurtt,  deceased.  He  admits  he  never  paid  to  the 
complainant,  or  to  his  wife  Adah,  any  part  of  the  purchase 
money,  or  any  thing  for  or  on  account  of  rents  or  profits  of  the 
said  land.  The  County  Court,  [ Earle,  Ch.  J.  and  Purnell,  and 
Wright,  A.  J.]  passed  the  following  decree,  viz.  The  court 
are  of  opinion  that  the  land  in  Kent  county,  devised  by  James 


OP  MARYLAND.  93 


HUHTT  vs.   FISHER. — 1827. 


Hurtt  to  be  sold,  is  to  be  considered  as  money,  and  that  his 
daughter  Adah's  part  of  it  has  devolved  on  the  complainant  by 
his  marriage  with  her.  The  court  therefore  adjudge  that  James 
Fisher,  the  complainant,  in  right  of  his  wife  is  entitled  to,  and 
that  he  recover  of  the  said  Henry  Hurtt,  the  trustee,  one  ninth 
part  of  the  proceeds  of  the  sale  of  the  said  land,  sold  by  him 
to  James  Salisbury  in  the. month  of  August  1814,  deducting 
therefrom  all  reasonable  expenses  of  the  said  trustee,  as  well  as 
a  reasonable  sum  for  his  commissions — the  said  trustees  having, 
in  the  judgment  of  the  court,  been  guilty  of  the  grossest  ne- 
glect in  his  negotiations  with  Salisbury,  and  in  the  manage- 
ment of  the  trust  fund.  Decreed,  that  the  defendant  pay  to 
the  complainant  the  sum  of  $295  22£,  with  interest  from  the 
1st  of  January  1815  till  paid,  according  to  the  statement  an- 
nexed, and  costs.  From  which  decree  the  defendant  appealed 
to  this  court. 

The  cause  was  argued  at  last  June  term  before  BUCHANAN, 
Ch.  J.  and  MARTIN,  STEPHEN,  ARCHER  and  DORSEY,  J. 

Chambers,  for  the  Appellant,  contended,  1.  That  the  bill 
of  complaint  does  not  sufficiently  charge  gross  neglect  in  the 
defendant  below  to  justify  the  decree.  2.  That  it  was  not 
competent  in  the  court  to  pass  the  decree  without  a  previous 
reference  to  the  auditor,  before  whom  the  defendant  could  have 
claimed  and  proved  his  expenses  and  disbursements  necessarily 
incurred  in  the  execution  of  his  trust. 

Eccleston,  for  the  Appellee,  insisted,  I.  That  after  the  sale  of 
the  land  on  the  27th  day  of  August  1814,  made  to  James  Salis- 
bury by  the  appellant,  as  trustee  under  the  will  of  his  father, 
the  right  and  interest  of  the  appellee,  and  his  wife  Adah,  in 
and  to  the  amount  of  the  sale  thereof,  must  be  considered  quasi 
personal  property;  and  that  notwithstanding  the  death  of  the 
said  Adah  since  the  said  sale,  without  ever  having  had  issue 
Born  alive,  the  appellee,  in  right  of  his  wife,  is  entitled  to  the 
same  interest  in  and  to  the  amount  of  the  sale  thereof  as  the 
appellee,  and  his  wife  Adah,  would  be  entitled  to  were  she 
living. 

2.  That  there  has  been  such  neglect  and  misconduct  on  the 


94  CASES  IN  THE  COURT  OP  APPEALS 

HURTT  vs.  FISHER. — 1827. 

part  of  the  appellant  as  trustee  under  the  will  of  his  father,  in 
relation  to  the  sale  of  the  said  land,  as  renders  him  liable  to 
pay  unto  the  appellee  the  one-ninth  part  of  the  net  amount  of 
the  sale  of  said  land,  as  made  on  the  27th  day  of  August  1814, 
together  with  legal  interest  thereon  from  the  1st  day  of  January 
1815,  until  paid. 

3.  That  if  the  appellee  is  not  entitled  to  the  one-ninth  part 
of  the  amount  of  the  sale,  as  made  on  the  27th  day  of  August 
1814,  he  is  entitled  to  such  other  relief  in  the  case  as  a  court  ol 
equity  would  think  proper  to  grant  unto  the  appellee,  and  his 
wife  Jldah,  were  she  still  living 

Curia  adv.  vult. 

MARTIN,  J.  at  this  term,  delivered  the  opinion  of  the  Court. 
That  a  trustee  is  answerable  for  money  lost  by  his  gross  negli- 
gence, is  a  principle  of  law  well  established;  and  whether 
Hurtt  has  been  guilty  of  such  negligence  as  to  make  him  an- 
swerable for  the  amount  of  the  purchase  money  on  the  first 
sale,  must  depend  upon  the  facts  admitted  in  the  answer. 

It  appears  the  will  was  proved  in  1814,  and  that  in  August 
of  the  same  year  the  lands  in  Kent  county  were  sold  by  Hurtt 
to  Salisbury.  The  terms  of  this  sale,  whether  for  cash,  or  on 
credit,  are  no  where  stated  in  the  record.  If  it  was  for  cash, 
it  was  the  duty  of  the  trustee,  upon  payment  being  refused,  to 
have  instituted  legal  process  to  enforce  it;  and  if  on  credit,  he 
ought,  in  a  reasonable  time  after  the  sale,  to  have  obtained  from 
the  purchaser,  bond  and  security  for  the  purchase  money;  and 
at  all  events,  the  possession  of  the  land  ought  to  have  been  re- 
tained by  him  until  the  necessary  security  was  given.  But  we 
find  in  this  case,  that  no  security  was  ever  obtained  for  the  pur- 
chase money;  and  although  the  land  was  sold  in  1814,  no  at- 
tempt was  made  to  enforce  the  payment  of  it  by  legal  process, 
until  some  time  in  the  year  1819,  and  yet  the  possession  of 
the  land  was  given  up  to  Salisbury  in  January  1815.  This 
affords  at  least  strong  prima  facie  evidence  of  very  gross  ne- 
glect, and  unless  satisfactorily  accounted  for  by  the  trustee, 
would  make  him  liable  for  the  money  on  the  first  sale.  How 
does  he  attempt  to  avoid  it?  That  Salisbury  refused  to  pay  the 
money  until  the  trustee  gave  him  a  deed,  and  that  he  could  not 
do,  without  an  application  to  the  court  of  chancery. 


OF  MARYLAND.  95 


HUHTT  vs.  FISHER. — 1H27. 


If  a  deed  was  necessary  in  this  case,  did  the  trustee  use  rea- 
sonable diligence  to  obtain  authority  to  give  it?  He  was  in- 
formed in  1814  a  deed  was  required  by  the  purchaser,  and  that 
the  money  would  be  paid  when  a  deed  was  executed ;  yet  he 
never  obtained  a  decree  in  chancery  for  this  purpose,  until  the 
year  1818,  about  four  years  after  the  original  purchase.  If 
there  were  circumstances  beyond  his  control  to  justify  this  de- 
lay, it  was  incumbent  on  him  to  have  stated  them  in  his  de- 
fence; but  in  the  absence  of  such  allegations,  which  if  they  had 
existed,  must  have  been  in  the  knowledge  of  the  trustee,  the 
court  have  no  right  to  presume  them.  If  in  a  reasonable  and 
proper  time,  the  trustee  had  filed  a  bill  in  chancery  to  autho- 
rise him  to  give  a  deed,  there  can  be  no  doubt  that  the  chan- 
cellor, having  all  the  proper  parties  before  him,  and  there  being 
no  legal  objection  to  the  contrary,  would  have  passed  a  decree 
to  confirm  the  first  sale;  to  authorise  the  trustee,  upon  the  pay- 
ment of  the  purchase  money,  to  give  a  deed,  and  to  order  the 
money  to  be  brought  into  court,  to  be  applied,  under  the  di- 
rection of  the  chancellor,  according  to  the  provisions  of  the 
will.  But  this  was  not  the  conduct  of  the  trustee.  Without 
any  authority,  (so  far  as  this  record  speaks,)  he  again  sold  this 
land  in  1823,  and  became  himself,  through  his  agent,  the  pur- 
chaser for  seven  dollars  and  twenty-five  cents  the  acre,  just  one 
half  of  the  original  purchase  money,  and  now  holds  and  pos- 
sesses the  land,  under  that  purchase.  With  this  view  of  the 
case,  the  court  must  charge  the  trustee  with  grossly  improper 
conduct,  more  especially  as  from  the  facts  disclosed  in  the  an- 
swer, there  is  strong  ground  to  believe,  if  he  had  faithfully  per- 
formed his  trust,  the  original  purchase  money  might  have  been, 
saved.  It  is  stated  that  Salisbury,  at  the  time  of  the  sale,  was 
in  good  credit  and  circumstances,  and  if  a  deed  had  been  ten- 
dered to  him  in  a  reasonable  time,  it  is  fairly  to  be  presumed 
the  purchase  money  would  have  been  paid  or  secured  to  the 
trustee. 

The  next  question  presented  to  the  court,  in  this  case  is, 
whether  the  purchase  money  arising  Irom  the  sale  of  this  land 
in  1814  is  to  be  considered  as  money,  and  would  devolve  upon 
James  fisher,  whose  wife  died  after  the  sale? 

We  feel  no  difficulty  upon  this  part  of  the  case.     We  con- 


96 


M'CCLI.OH  vs.   DASHIELI.. — 1827. 


cur  in  opinion  with  the  court  below,  that  the  land  in  Kent 
county  devised  by  James  Hurtt  to  be  sold,  and  sold  in  1814, 
is  to  be  considered  as  money,  and  that  James  Fisher  is  enti- 
tled to  the  same  portion  of  it,  upon  the  death  of  his  wife,  as  he 
would  have  been  authorised  to  receive,  had  she  been  alive. 

The  general  rule  of  law,  that  lands  devised  to  be  sold  are 
thereby  turned  into  money,  and  construed  in  equity  as  personal 
estate,  is  fully  sustained,  not  only  by  the  authorities  cited  by 
the  counsel  for  the  appellee,  but  by  many  others,  were  it  nie~ 
cessary  to  resort  to  them.  See  Doughty  vs.  Bull,  2  P.  Wms. 
320.  Lechmere  vs.  Earl  of  Carlisle,  3  P.  Wms.  215.  Best 
vs.  Stamford,  1  Salk.  154.  Maberly  vs.  Strode,  3  Ves.  450, 
456.  Trelawney  vs.  Booth,  2  Atk.  307.  Craig  vs.  Leslie^ 
et  al.  3  Wheat.  563.  Fisher's  wife  dying  after  the  sale,  leaves 
no  doubt  of  his  right  to  recover. 

DECREE  AFFIRMED^ 


MCuLLOH  vs.  DASHIELL'S  Adm'r. — 'June,   1827. 

C  &  T  drew  a  bill  in  favour  of  M,  on  D  &  B,  partners  in  trade,  which  they 
accepted.  M  sued  D  &  B  at  law  on  their  acceptance,  and  pending  the 
suit  D  died.  Judgment  being  had  against  B,  he  being  insolvent  obtain- 
ed a  discharge  under  the  act  relating  to  insolvent  debtors.  The  defen- 
dant administered  on  D's  estate,  and  received  assets  from  his  separate 
property  to  a  large  amount,  though  insufficient  to  pay  D's  individual 
debts,  and  also  received  some  of  the  partnership  funds.  The  judgment 
not  being  paid,  and  the  partnership  funds  being  insufficient  to  pay  ite 
debts,  M  filed  a  bill  in  equity  against  D's  administrator,  claiming  to  be 
paid  out  of  the  separate  assets,  and  equal  proportion  with  D's  separate 
creditors.  Held,  that  he  was  not  entitled  to  recover. 

Joint  creditors  in  equity  can  only  look  to  the  surplus  of  the  separate  estate, 
after  the  payment  of  the  separate  debts. 

Separate  creditors,  in  equity,  can  only  seek  indemnity  from  the  surplus  of 
the  joint  fund,  after  the  satisfaction  of  the  joint  creditors. 

Where  the  claims  of  joint  creditors  do  not  come  into  conflict  with  those 
of  the  separate  creditors,  but  only  with  the  interests  of  the  representa- 
tives of  the  deceased  partner,  equity  will  decree  to  joint  creditors  a 
satisfaction  of  their  claims,  by  considering  them,  as  they  are  considered 
at  law,  both  joint  and  several. 

At  law  the  joint  creditors  may  pursue  both  the  joint  and  separate  estate, 
to  the  extent  of  each,  for  the  satisfaction  of  their  joint  demands  ,without 
restriction  from  a  court  of  equity;  yet  when  by  the  death  of  one  of  the 


OF  MARYLAND* 


M'Cci.LOH  v.  DASHIELL.— 1827. 


parties,  the  legal  right  survives  against  the  surviving  partner,  and  is  ex- 
tinguished against  the  deceased  partner,  that  court  will  give  to  the  sepa- 
rate creditors  all  the  advantages,  thus  by  accident  thrown  upon  them. 
The  assets  of  insolvents  are  distributable  according  to  equity. 

APPEAL  from  Somerset  County  Court,  sitting  as  a  court  of 
equity.     In  this  case  the  bill  of  the  complainant*   (now  appel- 
lant,) stated,  and  the  pirties  admitted,  that  in  1817  Peter  Da- 
shiell and  Richard  Bennett  were  partners  in  trade,  dealing  in 
merchandise,  under  the  firm  of  Dashiell  and  Bennett.     That 
Chase  and  Tilyard,  being  indebted  to  the  complainant,  drew 
a  bill  of  exchange  on  Dashiell  and  Bennett,   directing  them 
to  pay  to  the  order  of  the  complainant  $700,   which  was  ac- 
cepted by  Dashiell  and  Bennett.     That  the  complainant  in  the 
year  1818  instituted  a  suit  at  law  against  Dashielland  Bennett 
for  the  recovery  of  the  money  due  on  the  said  acceptance,  and 
pending  the  suit  Dashiell  died  intestate.     That  judgment  was 
afterwards  recovered  against  Bennett,  the  surviving  partner, 
and  upon  the  return  of  the  execution  issued  on  the  judgment, 
Bennett  petitioned  and  obtained  the  benefit  of  the  act  for  the 
relief  of  insolvent  debtors.    That  at  the  time  of  his  petition  and 
discharge  he  had  no  property;  and  no  part  of  the  said  judgment 
had  been  paid.     That  the  defendant  (the  appellee,)  obtained  let- 
ters of  administration  on  the  estate  of  Dashiell,  and  had  assets  in 
his  hands  to  the  amount  of  $1 3,061  43.     That  the  personal  estate 
of  Dashiell  is  insufficient  to  pay  his  separate  and  private  debts. 
That  the  defendant,  as  his  administrator,  had  received  of  the 
partnership  funds  $35  93.    The  complainant  claimed  to  be  paid 
out  of  the  assets  in  the  defendant's  hands,  an  equal  proportion  of 
their  claim  with  the  other  creditors  of  Dashiell.     But  the  Coun- 
ty Court,  [Martin,  Ch.  J.  and  Robins,  A.  J.]  refused  to  allow 
the  complainant's  claim,  and  decreed  that  no  part  of  his  claim 
should  be  paid,  except  from   the  partnership  funds,  until  the 
separate  and  individual  debts  of  Dashiell  should  be  first  paid; 
and  that  the  surplus,  if  any,  should  be  applied  to  the  payment 
of  the  partnership  debts,  and  not  otherwise.     From  this  decree 
the  complainant  appealed  to  this  court. 

The  cause  was  argued  at  last  June  term  before  BtrcHANAflr, 
Ch.  J.  and  EARLE,  STEPHEN,  ABCIIER,  and  DORSEY,  J. 
VOL.  I  13 


CASES  IN  THE  COURT  OF  APPEALS 


M'Cuii.OH  ts.   UASIIIELL.  —  1827. 


J.  Bayly,  for  the  Appellant,  stated  the  question  to  be,  Whe- 
ther the  complainant  in  the  court  below,  and  now  appellant, 
was  entitled  to  be  paid  an  equal  proportion  of  his  claim,  with 
the  other  creditors,  out  of  the  assets  in  the  defendant's  hands? 
Or  whether  his  claim  shall  be  postponed  until  all  the  separate 
and  individual  creditors  shall  have  been  first  paid,  and  only  ad- 
mitted to  a  proportion  of  the  surplus,  if  any? 

To  show  that  the  complainant  was  entitled  to  be  paid  an 
equal  proportion  of  his  claim  with  the  separate  creditors  of 
JDashiell,  out  of  the  assets  in  the  hands  of  the  defendant,  he 
referred  to  the  acts  of  1798,  ch.  \Q\,subch.  8,  s,  17,  and  1805, 
ch.  110,  s.  7.  Murray  fy  Sansom  vs.  Ridley1  s  Jidni'x.  3 
ffarr.  $r  M'Hen.  175.  ffamersley  vs.  Lambert,  2  Johns.  Ch. 
Hep.  508.  Tucker  vs.  Oxley,  5  Crunch,  34,  39.  Ex  parte 
Elton,  3  Ves.  238.  Stephenson  vs.  Chiswell,  Ib.  566. 

JR.  N.  Martin  and  Tingle,  for  the  Appellee.  Where  there 
is  a  separate  estate,  and  individual  and  co-partnership  creditors, 
the  first  have  the  first  claim  out  of  the  estate.  The  interest 
which  co-partnership  creditors  have,  is  after  the  payment  of  in- 
dividual debts.  2  Madd.  Ch.  463.  Partnership  effects  shall 
in  the  first  place  be  applied  to  pay  partnership  debts.  The  se- 
parate creditors  can  only  resort  to  the  surplus.  1  Madd.  Ch. 
463.  2  Madd.  Ch.  466.  Ex  parte  Crowder,  2  Vern.  706. 
Ex  parte  Hunter,  1  Atk.  227.  Ex  parte  Cook,  2  P.  Wms. 
500.  Ex  parte  Elton,  3  Fes.  238.  Ex  parte  Clarke,  4  Ves. 
677.  Ex  parte  rfbell,  Ib.  837,  839.  Thomas  vs.  Frazer,  3 
Ves.  39t>,  (note.)  Ex  parte  Clay,  6  Ves.  813.  Ex  parte 
Reeve,  9  Ves.  590.  Gray  vs.  Chiswell,  Ib.  124.  Gow  on  Part. 
270,  271,  272,  317,  367,  461.  1  Bac.  M.  tit.  Bankruptcy, 
460.  Lane  vs.  Williams,  2  Vern.  277,  292.  Simpson  vs. 
Vaughan,  2  Jltk.  31. 

J.  Bayly,  in  reply,  cited  Murray  vs.  Murray,  5  Johns.  Rep. 
*JO.  Act  of  1798,  ch,  101,  sub  ch.  8,  s.  5,  7,  10,  16.  Ex  parte 
Hodgson,  2  Bra.  Ch,  Rep.  5.  Harrison  vs.  Sterry,  5  Cranch, 
302. 

Curia  adv.  vult. 


OF  MARYLAND. 


M'CcLLon  vs.  UASHIELL. — 1827. 


ARCHER,  J.  at  the  present  term,  delivered  the  opinion  of  thft 
court.  The  bill  filed  in  this  cause  states  that  a  bill  of  exchange 
was  on  the  18th  of  August  1817,  drawn  by  the  firm  of  Chase 
and  Tilyard  upon  Dashiell  and  Bennett,  co-partners  in  trade, 
for  the  sum  of  $700,  in  favour  of  the  complainant,  and  that  it 
was  by  the  drawees  duly  accepted;  that  a  suit  was  instituted 
against  Dashiell  and  Bennett  upon  the  said  acceptance  by  the 
complainant;  that  pending  the  action  in  Somerset  county  court, 
the  intestate  of  the  defendant,  and  one  of  the  firm  of  Dashiell 
and  Bennett  died,  and  judgment  was  obtained  against  Bennett 
the  surviving  partner.  That  Bennett  applied  for  and  obtained 
the  benefit  of  the  insolvent  laws  of  this  state,  having  been  fi- 
nally discharged  at  November  term  1820,  no  part  of  the  claim 
having  been  paid;  that  the  said  surviving  partner  had  no  pro- 
perty either  joint  or  separate,  wherewith  satisfaction  could  be 
made  of  the  said  debt.  That  Parsons,  the  respondent,  took 
out  letters  of  administration  on  the  estate  of  Dashiell;  and 
prays  that  a  decree  may  pass  directing  the  administrator  to  pay 
the  amount  of  the  acceptance  from  the  assets  of  the  deceased, 
or  such  part  thereof  as,  upon  a  just  distribution  of  the  assets, 
he  may  as  one  of  his  creditors  be  entitled  to.  The  bill  of  ex- 
change above  referred  to,  the  judgment,  and  certificate  of  the 
final  discharge  of  Bennett,  are  filed  as  exhibits  in  the  cause; 
and  the  following  admission  of  counsel  is  contained  in  the  re- 
cord: "That  the  trustee  of  Richard  Bennett,  an  insolvent 
debtor,  has  not  received  any  property  belonging  to  Bennett; 
that  no  part  of  thp  debt  due  to  the  complainant  has  been  paid 
either  by  the  trustee,  or  by  Bennett;  that  the  personal  estate 
of  Dashidl  is  insufficient  to  pay  his  private  and  individual  cre^ 
ditors;  that  the  defendant  has  received  of  the  partnership  debts 
due  to  the  firm  of  Bennett  and  Dashiell,  $35  93.  The  par- 
ties moreover  admit  the  exhibits  above  stated  as  testimony,  and 
waive  the  formality  of  making  either  the  trustee,  or  Bennett 
the  surviving  partner,  a  pcrty  to  these  proceedings." 

The  question  presented  for  the  decision  of  this  court  upon 
this  record,  is  whether  the  complainant  is  entitled  to  be  paid 
an  equal  proportion  of  his  claim,  with  the  separate  creditors  of 
Dashiell,  out  of  the  assets  in  the  defendant's  hands;  or  whe- 


100  CASES  IN  THE  COURT  OF  APPEALS 

M'CuLLOH  vs.  DASHIELL. — 1827. 

ther  the  claim,  being  a  joint  claim,  shall  be  postponed  until  all 
the  separate  creditors  shall  be  first  fully  paid? 

The  question  thus  stated  is  one  of  considerable  importance; 
and  although,  undoubtedly,  of  very  frequent  occurrence  in  the 
subordinate  testamentary  tribunals,  has  never,  we  believe,  re- 
ceived an  adjudication  in  the  appellate  court,  or  in  any  of  the 
higher  courts  of  original  jurisdiction. 

There  are  very  few  cases  in  the  English  books  bearing  di- 
rectly upon  the  distribution  of  assets,  in  a  case  situated  as  this 
is.  It  has  been  contended  in  argument,  that  it  must  be  govern- 
ed by  the  principles  adopted  in  England  in  the  marshalling  of 
assets  in  bankruptcy.  And  as  they  are  distributed  according' 
to  equity,  if  the  rule  can  be  definitively  ascertained,  it  ought 
to  govern  here.  But  an  examination  of  the  authorities,  will 
show,  that  it  has  been  very  unsteady  and  fluctuating;  varying 
frequently  in  form,  often  in  substance,  according  to  the  ideas 
entertained  by  each  succeeding  chancellor,  of  the  rights  of  the 
joint  and  separate  creditors;  and  moulded  more  upon  their  no- 
tions of  convenience  to  all  the  parties  concerned,  than  as  stand- 
ing upon  legal  reasoning.  Duttonvs.  Morrison,  17  Ves.  205. 
Amid  the  multitude  of  decisions  which  have  taken  place  upon 
this  subject,  it  is  no  easy  task  to  trace  the  history  of  the  rule  of 
distribution  in  bankruptcy. 

But  this  examination  will  satisfy  us,  that  amidst  all  the  fluctua- 
tions of  the  rule,  the  principles  established  in  the  first  cases  oc- 
curing  more  than  a  century  since,  have  but  for  a  short  period, 
been  materially  encroached  upon;  and  that  now  the  leading 
principles  of  distribution,  with  some  modifications,  are  what 
they  were  originally  established  to  be. 

In  Ex  parts  Crowder,  2  Vern.  706,  decided  in  1715,  which 
•was  an  application  on  the  part  of  the  separate  creditors,  to  be 
let  in  under  a  joint  commission,  the  separate  estate  being  of 
small  value,  it  was  decided  that  they  might  be  permitted  to 
prove  their  claims  under  the  joint  commission,  but  that  the 
joint  funds  were  applicable,  in  the  first  instance,  to  the  pay- 
jnent  of  joint  debts,  and  then  the  separate  debts;  and  that  the 
separate  effects  should  be  applied  to  the  payment  of  the  separate 
«tebts,  and  that  the  surplus  should  go  to  the  liquidation  of  the 
joint  debts.  In  Exparte  Cook,  2  P.  Wms.  500,  (in  1728,) 


OF  MARYLAND.  101 


M'CrLi.OH  v.   DASHIELI. — 1827. 


Lord  Chancellor  King  followed  the  determination  in  Ex partt 
Crowder,  and  d  eclared  it  to  be  settled,  and  that  it  was  a  resolu- 
tion of  convenience,  that  the  joint  creditors  shall  be  first  paid 
out  of  the  partnership  estate,  and  the  separate  creditors  out  of 
the  separate  estate  of  each  partner,  and    if  there  be  a  surplus 
of  the  joint  estate,  besides  what  will  pay  the  joint  creditors, 
the  same  shall  be  applied  to  pay  the  separate  creditors;  and  if 
there  be  on  the  other  hand  a  surplus  of  the  separate  estate,  be- 
yond what  will  pay  the  separate  creditors,  it  shall  go  to  supply 
any  deficiency  that  may  remain  as  to  the  joint  creditors.     In 
Ex  parte  Hunter,  1  *fltkyns,22S,  (in  1742,)  Lord  Hardwicke 
says,  as  between  joint  and   separate  creditors  the  joint  estate 
shall  be  applied  to  the  joint  creditors,    and   the  separate  estate 
to  the  separate  creditors.     The  rule  that  prevailed  during  the 
administrations  of  Lords  King  and  Hardwicke,  from  1715  down 
to  the  time  of  Lord  Thurlow,  was  that  joint  creditors  could 
not  prove  under  a  separate  commission,  for  the  purpose  of  re- 
ceiving dividends  with  the  separate  creditors,   (Watson  on 
Part.  244,  Ex  parte  Taitt,  16  lres.  195  ;)  but  only  for  the 
purpose  of  going  for  the  surplus  after  the  satisfaction  of  the 
separate  creditors.     But  Lord  Thurlow  broke  in  upon  the  es- 
tablished practice  of  the  court,  which  had  prevailed  for  sixty 
years;   and  in  1785,  in  Ex  parte  Hodgson,  2  Bro.  Cha.  Rep. 
5,  resolved  that  there  was  no  distinction   between  joint  and 
separate  creditors;  that  they  ought  to  be  paid  out  of  the  bank- 
rupt's estate,  and  his  moiety  of  the  joint  estate;  and  that  the  joint 
creditors  oi'ght  to  come  in  pari passu,  with  the  separate  credi- 
tors.    This  resolution  laid  down,  as  it  is,  in   broad  and  gene- 
ral terms,  would  appear  to  have  broken  down  all  the  bounda- 
ries previously  established,  between  the  rights  and  priorities  of 
the  joint  and  separate  creditors;  yet  if  taken  with  the  limita- 
tions with  which  it  is  said,  by  Watson  on  Partnership  to  have 
been  qualified,  it  will  appear  to  have  made  this  innovation  only 
— that  they  should  all,  joint  as  well  as  separate  creditors,  be 
permitted  to  prove  their  claims  against  the  separate  estate  upon 
a  separate  commission;  but  that  it  was  competent  for  the  as- 
signees to  confine  the  joint  creditors,  where  there  was  a  joint 
estate,  to  that  fund  exclusively,  by  filing  a  bill  in  equity  against 
the  other  partners,  and  obtaining  an  injunction  upon  the  order 


102  CASES  IN  THE  COURT  OF  APPEALS 

M'CuiLOH  v.  DASHIELI.. — 1827. 

in  bankruptcy.  And  that  this  was  the  consequence  of  Lord 
Thurlow's  adjudication  is  apparent  from  Lord  Rosslyn's  judg- 
ment in  Ex  parte  Elton,  3  Ves.  238.  Thus  the  rights  of  the 
joint  and  separate  creditors,  on  their  respective  funds  where 
there  was  a  joint  estate,  was  maintained,  notwithstanding  the 
alteration  thus  made  in  the  order  in  bankruptcy.  In  the  case 
of  Ex  parte  Elton,  decided  in  1796,  the  rule  established  in 
1785,  was  deemed  by  the  then  chancellor  to  be  an  inconvenient 
one,  because  every  order  which  he  passed  in  bankruptcy,  that 
the  joint  creditor  should  receive  a  dividend  out  of  the  separate 
estate,  might  give  rise  to  a  bill  in  equity,  on  the  part  of  the 
separate  creditors  to  restrain  this  order  and  to  secure  the  appro- 
priation of  the  separate  estate  to  the  satisiaction  of  the  separate 
debts;  and  it  was  adjudged,  that  a  joint  creditor  might  prove 
his  claim  under  a  separate  commission,  not  for  the  purpose  of 
receiving  a  dividend,  until  an  account  should  be  taken  of  what 
he  had  or  might  have  received  from  the  partnership  effects, 
Thus  the  chancellor,  in  the  modification  which  he  gave  to  the 
order  in  bankruptcy,  exercised  his  equity  jurisdiction,  and  gave 
to  each  order  the  operation  of  an  injunction,  without  the  ex- 
pense of  a  bill,  whereby  the  joint  creditor  was  restrained  from 
coming  on  the  separate  fund  until,  in  the  final  adjustment  of 
the  co-partnership  and  individual  accounts,  equity  should  de- 
termine what  portion  of  the  separate  funds  should  be  allotted 
to  the  joint  creditor.  And  he  says,  that  the  joint  creditors 
are  in  the  situation  of  a  person  having  two  funds.  The  court 
will  not  allow  him  to  attach  himself  to  one  fund,  to  the  preju- 
dice of  those  who  have  no  other,  and  to  neglect  the  other  fund. 
He  has  the  law  open  to  him,  but  if  he  comes  to  claim  a  dis- 
tribution, the  first  consideration  is,  what  is  that  fund  from 
which  he  seeks  it?  It  is  the  separate  estate  which  is  particu- 
larly attached  to  the  separate  creditors.  Upon  the  supposi- 
tion there  is  a  joint  estate,  the  answer  is,  apply  yourself  to 
that,  you  have  a  right  to  come  upon  it.  The  separate  creditors 
have  not.  Therefore  do  not  affect  the  fund  attached  to  them, 
till  you  have  obtained  what  you  can  get  from  the  joint  fund. 
Thus  it  would  appear  that  the  ancient  order  of  distribution  was 
restored  with  this  modification,  that  the  joint  creditors  might 
prove,  but  could  not,  as  before,  receire  dividends  without  the 


OP  MARYLAND. 


M'CCLLOH  v.   DASUIELL. — 1827. 


further  order  of  the  chancellor,  which  should  be  made  after  the 
settlement  of  accounts,  which  were  directed  to  be  kept,  as  be- 
fore, separate.  This  important  principle  also  seems  distinctly 
to  be  set  up  by  this  decision,  that  where  there  are  no  joint  ef- 
fects, and  no  solvent  partner,  that  the  joint  creditors  might  be 
permitted  to  come  in  with  the  separate  creditors,  a  doctrine 
which  appears  to  have  been  first  recognized  by  Lord  Tlmrlow, 
in  Ex  parte  Hayden,  1  Bro.  Ck.  Rep.  453,  for  before  that 
period  it  has  been  seen  that  they  could  only  come  upon  the  sur- 
plus. This  doctrine  Lord  Eldon  has  uniformly  adhered  to, 
although  it  will  be  iound  that  he  repeatedly  complains  of  it,  as 
a  rule  producing  some  inconveniencies,  and  liable  to  several 
objections,  as  will  be  seen  by  a  reference  to  Ex  parte  Pinker- 
ton,  6  Ves.  813,  (note.)  Ex  parte  Kensington,  14  Ves.  447, 
Ex  parte  Kendo. I,  17  Ves.  521.  Ex  parte  Mell,  4  Ves.  837. 
In  the  case  of  Ex  parte  Kensington,  the  joint  creditors  were 
forbid  receiving  dividends  with  the  separate  creditors,  on  the 
ground  that  there  was  one  solvent  partner,  although  there  was 
no  joint  estate.  That  the  petitioner  would  have  been  allowed 
had  the  partner  been  bankrupt,  is  the  necessary  inference  from 
the  case;  and  in  the  former  case  the  joint  creditors  were  per- 
mitted to  come  in  where  there  were  no  joint  effects,  upon  the 
ground  that  the  solvent  partner  was  abroad,  and  that  therefore 
the  difficulty  was  increased  in  resorting  to  him. 

Such  is  a  succinct  history  of  the  law  upon  this  subject,  and 
the  modern  doctrine  has  been  summarily  stated  by  Eden,  in 
his  notes  to  Ex  parte  Hodgson,  2  Bro.  Ch.  Rep.  5,  by  Vesey 
in  Ex  parte  Taittt\n  his  16th  vol.194,  (n,)  and  also  by 
Maddock,  in  the  2d  volume  of  his  treatise  on  the  principles 
and  practice  of  the  Court  of  Chancery,  463.  They  all  unite 
in  saying,  (and  they  are  fully  supported  by  the  authorities  cited 
by  them  respectively,)  "that  the  joint  creditor  may  prove  un- 
der a  separate  commission,  for  the  purpose  of  assenting  to,  or 
dissenting  from,  the  commission,  or  of  going  against  the  sur- 
plus after  the  satisfaction  of  the  separate  debts,  not  to  vote  on 
the  choice  of  assignees,  or  receive  dividends  with  the  separate 
creditors,  (except  a  joint  creditor  who  is  a  petitioning  creditor 
under  the  commission,)  or  where  there  are  no  joint  effects t  or 
no  solvent  partner,  or  no  separate  debts,  or  the  joint  creditori 


104  CASES  IN  THE  COURT  OF  APPEALS 

M'CULLOH  vs.  DASHIELT,. — 1827. 

will  pay  twenty  shillings  in  the  pound  to  the  separate  credi- 
tors." 

The  case  of  Gray  vs.  Chiswell,  9  Ves.  124,  as  it  is  strongly 
illustrative  of  the  above  doctrines,  and  was  a  case,  not  in  bank- 
ruptcy but  in  equity,  will  be  particularly  adverted  to.  A  bill 
was  filed  by  the  creditors  of  Cook  against  the  heir  and  execu- 
trix of  Chiswell,  claiming  to  come  upon  the  real  estate  of  Chis- 
well, for  the  amount  of  their  debts,  as  the  personal  estate  had 
been  absorbed  by  specialty  creditors.  Chiswell  had  been  a 
partner  of  Nantes;  Nantes  had  survived  him,  and  had  become 
bankrupt.  The  joint  creditors  of  Nantes  and  Chiswell  proved 
their  claims  before  the  master.  The  joint  estate  was  insolvent, 
being  only  able  to  pay  an  inconsiderable  dividend,  and  the 
sum  proposed  to  be  raised  by  a  sale  or  mortgage  of  ChiswelVa 
real  estate,  was  not  more  than  sufficient  to  pay  the  separate  cre- 
ditors. A  contest  arose  between  the  joint  and  separate  credi- 
tors, the  former  insisting  on  their  right  to  come  in  pari  passu 
with  the  separate  creditors,  upon  this  fund,  thus  proposed  to  be 
raised  out  of  his  separate  estate.  But  the  Chancellor  (Lord, 
Eldon,)  refused  to  permit  them,  upon  the  ground  that  in  bank- 
ruptcy it  could  not  be  done,  and  that  the  accidental  death  of 
Chiswell  ought  not  to  put  the  joint  creditors  in  a  better  situa- 
tion than  they  would  have  been,  had  he  lived  and  become  bank- 
rupt. If  there  be  any  estate  for  distribution  among  the  joint 
creditors,  although  the  surviving  partner  is  bankrupt,  they  are 
not,  in  bankruptcy,  permitted  to  come  in  with  the  separate  cre- 
ditors. The  chancellor,  therefore  here,  as  in  bankruptcy, 
would  not  permit  the  joint  creditors,  who  had  effectuated  their 
claims  under  the  commission  against  Nantes,  although  they  had 
received  but  an  inconsiderable  dividend,  to  come  in  pari  passu 
with  the  separate  creditors.  There  was  here  some  joint  es- 
tate, and  then  the  general  rule  applied,  that  each  species  of  cre- 
ditor must  be  satisfied  out  of  the  fund  to  which  his  debt  parti- 
cularly attaches  itself;  and  the  rule  has  been  carried  to  this  ex- 
tent, that  if  there  be  a  joint  fund  of  any,  even  the  smallest 
description  which  is  capable  of  being  realized,  the  rule  is  in- 
flexible, and  the  joint  creditors  will  not  be  permitted  to  re- 
ceive dividends  from  the  separate  estate.  Ex  parte  Peake, 
Goto,  on  Pari.  408.  Thus  we  perceive  from  the  case  of  Gray 


vs    DASHIELI. — 1827. 


vs.  Chisivelly  that  the  rule,  which  is  applied  in  bankruptcy,  is 
xtended  to  cases  in  equity. 

It  is  difficult  to  say  upon  what  the  rule  in  equity  and  in 
bankruptcy,  with  the  modification  above  stated,  is  founded. 
The  joint  estate  is  benefited  to  the  extent  of  every  credit  which 
is  given  to  the  firm,  and  so  is  the  separate  estate  in  the  same 
manner  enlarged  by  the  debts  it  may  create  with  any  indivi- 
dual, and  there  would  be  unquestionably  a  clear  equity  in  con- 
fining the  creditors  to  each  estate  respectively,  which  has  thus 
been  benefited  by  their  transactions.  So  far  the,  rule  is  sensi- 
ble and  intelligible;  and  although  at  law  the  joint  creditors 
may  pursue  both  the  joint  and  separate  estate,  to  the  extent  of 
each,  for  the  satisfaction  of  their  joint  demands,  which  are  at 
law  considered  both  joint  and  several,  without  the  possibility 
of  the  interposition  of  any  restraining  power  of  a  court  of 
equity;  yet  when,  by  the  death  of  one  of  the  parties,  the  legal 
right  survives  against  the  surviving  partner,  and  is  extinguished 
against  the  deceased  partner,  a  court  of  equity  will  give  to  the 
separate  creditors  all  the  advantages  thus  by  accident  thrown 
upon  them,  and  will  not,  by  adopting  the  rigorous  rule  of  the 
Jaxv  merchant,  thereby  injure  and  prejudice  the  separate  credi- 
tor,  upon  whom,  viewed  in  connexion  with  the  separate  fund, 
it  always  looks  upon  as  meritorious  and  entitled  in  the  distribu- 
tion of  assets  to  the  preference.  But  although  a  court  of  equi- 
ty, as  against  the  separate  creditors,  will  not  adopt  the  law  mer- 
chant, which  considers  the  contract  both  joint  and  several;  yet 
whatever  doubts  have  heretofore  been  entertained  on  the  sub- 
ject, where  the  claims  of  these  joint  creditors  do  not  come  into 
conflict  with  the  separate  creditors,  but  only  with  the  interests 
of  the  representatives  of  the  deceased  partner,  it  is  now  unde- 
niably settled,  that  equity  will,  as  against  such  representatives, 
decree  to  joint  creditors  a  satisfaction  of  their  claims,  by  con- 
sidering them,  as  they  are  considered  at  law,  both  joint  and  se- 
veral. 

But  although  these  distinctions  are  built  on  the  solid  founda- 
tions of  reason  and  justice,  it  is  not  altogether  so  easy  to  per- 
ceive, why,  when  there  is  no  joint  fund,  and  no  solvent  part- 
ner, (by  no  solvent  partner  is  meant  bankrupt  partner,)  the  joint 
creditor  should  thereby  acquire  the  equitable  right  of  coming 
VOL.  i.  14 


106 


vs.  DASHIBU. — 1827. 


in  with  the  separate  creditors  part  passu,  upon  a  fund  in  no 
manner  benefited  by  the  creation  of  his»  debt.  Such,  however, 
is  the  settled  and  established  rule,  as  we  are  enabled  to  collect 
it  both  in  bankruptcy  and  in  equity;  and  according  to  this  rule 
the  complainant  could  not,  in  this  case,  be  permitted  to  seek  in- 
demnity for  his  claim,  from  the  separate  estate  part  passu 
with  separate  creditors,  as  it  is  a  conceded  fact  in  the  cause, 
that  there  are  joint  funds,  although  very  inconsiderable,  and 
greatly  insufficient  to  pay  the  debt  of  the  complainant. 

But  were  not  this  the  fact,  this  court  would  have  no  difficulty 
in  saying,  that  the  complainant  should  be  postponed  to  the  se- 
parate creditors;  and  that  whether  there  was  any  joint  estate 
or  not,  he  should  not  be  permitted  to  divide  with  the  separate 
creditors  a  fund  insufficient  to  pay  them.  We  are,  therefore., 
disposed  to  adopt  the  ancient  rule  as  more  consonant  to  equity 
and  justice,  that  the  joint  creditors  can  only  look  to  the  sur- 
plus, after  the  payment  of  the  separate  debts;  and  on  the  other 
hand,  that  the  separate  creditors  can  only  seek  indemnity  from 
the  surplus  of  the  joint  fund  after  the  satisfaction  of  the  joint 
creditors. 

It  is  believed  that  the  case  of  Tucker  vs.  Oxley,  5  Crunch, 
34,  somewhat  militates  against  the  views  which  we  have  taken 
of  the  English  law  upon  this  subject,  and  it  has  been  pressed 
upon  the  court,  by  the  appellant's  counsel,  as  containing  prin- 
ciples decisive  of  this  case.  It  was  there  determined,  that  un- 
der the  bankrupt  law  of  the  United  States,  (and  the  bank- 
rupt law  of  England  and  that  of  the  United  States,  so  far 
as  connected  with  the  matter  there  decided,  are  nearly  iden- 
tical,) that  a  joint  debt  may  be  set  off  against  the  separate 
claim  of  the  assignee  of  one  of  the  partners,  but  that  such 
set-off  could  not  be  made  at  law,  independent  of  the  bank- 
rupt system.  The  particular  decision  in  this  case,  it  is  not  ma- 
terial perhaps1  to  examine,  because  it  was  a  case  at  law,  and  the 
relations  of  the  parties  were  materially  different.  It  would 
perhaps  be  sufficient  to  say,  that  the  Supreme  Court,  although 
they  conceive  a  legal  right  exists  in  the  joint  creditors  to  prove 
and  receive  dividends  out  of  the  separate  estate,  explicitly  ad- 
mit, that  such  right  it  is  competent  for  a  court  of  equity  to  re- 
strain, and.  to  compel  the  exercise  of  such  right  in  such  manner 


OF  MARYLAND.  107 


MORRIS  vs.  BRICKLET  &  CALDWELL. — 1827. 


as  not  to  prejudice  or  to  do  injustice  to  others.  We  might,  in 
any  view  of  the  cause  before  us,  dismiss,  without  further  ob- 
servation, the  case  of  Tucker  vs.  Oxley;  but  we  cannot  for- 
bear remarking,  that  the  case  upon  which  the  court  there  build 
their  opinion,  that  a  legal  right  universally  exists  in  the  joint 
creditors  upon  a  separate  commission  to  come  on  the  separate 
estate  pari  passu  with  the  separate  creditors,  is  the  case  where 
a  joint  creditor  is  the  petitioning  creditor,  and  is  an  excepted 
case  from  the  general  rule.  ( Vide  argument  of  Sir  Samuel 
Homily  in  Ex  parte  *flckerman,  14  Ves.  604,  and  the  autho- 
rities referred  to  by  Vesey.)  Maddox  in  his  1st  vol.  463, 
considers  this  a  singular  exception  to  the  general  rule;  and 
the  reason  assigned  for  the  adoption  of  the  exception  is,  that 
the  joint  creditor,  having  petitioned  for  the  commission  of  bank- 
ruptcy, it  might  be  considered  in  the  nature  of  a  modified  ex- 
ecution, taken  out  by  him,  as  well  for  his  own  benefit  as  fop 
that  of  the  separate  creditors;  and  that  it  would  be  against  all 
equity  to  permit  the  separate  creditors  to  prevent  the  joint  cre- 
ditor from  reaping  the  fruits  of  an  execution  taken  out  for  hi* 
and  their  mutual  benefit. 

Thus,  without  encroaching  upon  any  decided  case,  and  act- 
ing in  strict  conformity  to  the  settled  doctrines,  it  must  be  de- 
termined, that  although  Bennett  is  a  certificated  insolvent,  yet 
as  the  separate  estate  of  Dashiell  is  insufficient  to  pay  his  in- 
dividual debts,  the  complainant,  a  joint  creditor  of  Bennett 
and  Dashiell,  cannot  be  permitted  to  come  in  pari  passu  with 
the  separate  creditors  of  Dashiell, 

DECREE  AFFIRMED. 


MORRIS  vs.  BRICKLEY  &  CALDWELL. — June,  1827. 

"Where  a  plaintiff  offers  no  testimony,  or  such,  as  is  so  slight  and  inconclu- 
sive, that  a  rational  mind  cannot  draw  the  conclusions  sought  to  be  de- 
duced from  it,  it  is  the  right  of  the  court,  and  their  duty,  when  applied  to 
for  that  purpose,  to  instruct  the  jury,  that  he  is  not  entitled  to  recover. 

A  positive  and  absolute  direction  to  the  jury  will  not  be  granted,  if  it  obliges 
the  court  to  discredit  a  witness;  to  do  that  the  intervention  of  a  jury  is 
peculiarly  necessary. 

APPEAL  from  Cecil  County  Court.     Jlssumpsit  for  money 
laid  out,  lent,  advanced  and  expended.    The  plaintiff,  (now  ap- 


108  CASES  IN  THE  COURT  OP  APPEALS 

MOTIRIS  v,  BEICKLET  &  CAI.DWELL — 1827. 

pellant,)  at  the  time  of  filing  his  declaration,  filed  therewith  an 
account  of  his  claim  against  the  defendants  (the  appellees,)  with 
an  account  of  sales  of  100  barrels  of  herrings  received  by  the 
plaintiff  from  the  defendants,  and  by  him  sold  to  sundry  persons, 
among  others,  51  barrels  sold  in  September  and  October  1817 
to  JosephS.  Eves,  at  $4  50,  per  barrel,  amounting  to  $229  50. 
After  deducting  freight,  commission,  &c.  the  balance  of  the 
whole  amount  of  the  sales  of  the  100  barrels  was  $305  76.  The 
account  raised  by  the  plaintiff  against  the  defendants,  charged 
them  with  cash  at  sundry  times,  with  interest,  &c.  amounting 
to  $185  56,  and  credited  them  with  the  amount  of  the  sales 
of  the  100  barrels  of  herrings  $305  76,  deducting  therefrom  51 
barrels  sold  to  Joseph  B.  Eves,  at  60  days,  and  unpaid,  at 
$4  50,  per  barrel,  $229  50.  Thus  reducing  that  credit  to 
$76  26,  and  allowed  interest  thereon,  $6  76,  making  a  balance 
due  to  the  plaintiff  of  $102  54.  From  this  sum  the  plaintiff's 
commission  of  2|  per  cent,  on  the  sale  of  the  51  barrels  to 
Eves,  amounting  to  $5  75,  was  deducted,  leaving  due  the 
plaintiff  $96  81.  The  defendants  pleaded  the  general  issue. 

At  the  trial  the  plaintiff  produced  and  offered  in  evidence  the 
account  referred  to  in  the  declaration,  (which  account  had  been 
sworn  to  by  the  plaintiff,  and  by  N.  C.  Neilson,  his  clerk,  be- 
fore a  notary  public  for  the  state  of  Pennsylvania,}  and  also 
the  depositions  taken  under  a  commission  regularly  issued  and 
returned  in  this  cause,  viz.  that  of  Samuel  Jlrcher,  who  af- 
firmed that  in  July,  August,  September,  and  November  1817, 
he  sold  to  Joseph  Bennett  Eves  on  an  average  credit  of  not 
short  of  four  months,  goods  to  the  amount  of  more  than  $4,000; 
and  at  the  time  of  the  failure  of  said  Eves,  the  affirmant  was 
a  creditor  to  the  amount  of  more  than  $10,000;  that  at  the  time 
of  said  Eves'  failure,  he  was  indebted  to  the  amount  of  not 
less  than  $70,000 — many  of  the  most  intelligent  and  respecta- 
ble merchants  of  Philadelphia  being  amongst  his  creditors. 
That  there  are  grades  of  credit  in  Philadelphia,  as  in  other 
places,  and  the  affirmant  does  not  consider  that  the  said  Eves 
was  in  the  highest  grade  of  credit,  yet  he  believes  he  might 
have  extended  his  purchases  to  a  still  greater  amount  than  he 
did.  Charles  F.  Hozey  deposed  that  he  knows  the  plaintiff, 
but  he  did  not  know  the  defendants;  that  the  dealings  of  the 


OF  MARYLAND.  109 

MORRIS  r.  BRICKLET  &  CALDWELL. — 1827. 

parties  as  referred  to  in  the  plaintiff's  statement,  did  take  place; 
that  he  knows  that  about  the  months  of  September  and  October 
1817,  the  plaintiff  sold  to  Joseph  Bennett  Eves  a  quantity  of 
herrings,  for  the  amount  of  which  he  took  the  said  Eves's 
notes,  which  he  endorsed  and  deposited  in  bank  for  collection, 
as  is  customary;  but  the  same  never  were  discounted,  nor  the 
money  obtained  from  Eves  for  the  same.  The  deponent  knows 
the  facts  he  has  above  testified,  from  his  having  been  a  clerk  of 
the  plaintiff,  at  the  time  the  transaction  took  place,  and  to  the 
present  period.  The  defendants  then  prayed  the  court  to  direct 
the  jury,  that  the  evidence  produced  was  not  sufficient  to  sup- 
port the  action.  Which  direction  the  Court,  [Earle,  Ch.  J. 
and  Worrell,  A.  J.]  gave  to  Vhe  jury.  The  plaintiff  excepted; 
and  the  verdict  and  judgment  being  against  him,  he  appealed 
to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  MAR- 
TIN, ARCHER,  and  DORSEY,  J.  by 

Gale,  for  the  Appellant,  and  by 
Carmichael,  for  the  Appellees. 

DORSEY,  J.  delivered  the  opinion  of  the  court.     This  court 
have,  on  more  occasions  than  one  determined,  that  where  there 
is  no  testimony,  or  where  the  testimony   offered    is  so  slight, 
and  inconclusive,  that  a  rational  mind  could  not  draw  the  con- 
clusions sought  to  be  deduced  from  it,  that  it  is  the  unquestion- 
able right  of  the  court,  and  their  imperious  duty,  when  applied 
to  for  that  purpose,  to  instruct  the  jury,  that  the  plaintiff  is  not 
entitled  to  recover.     Whether  the  case  at  bar  comes  within  the 
operation  of  this  decision,  is  the  question  now  to  be  considered, 
and  its  determination  depends  upon  the  proof  offered  to  the  jury, 
and  all  the  circumstances  admissible  in  argument  before  them, 
•connected  with  this  controversy,  as  they  appear  upon  the  face 
of  the  record.     The  appellant  having  filed  his  declaration,  also 
filed  in  court  an  account  showing  the  transactions   between  the 
parties,  and  the  nature  of  the  claim  on   which  the  action  was 
founded.      Which  account  showed    the  consignment  by  the 
appellees  of  one  hundred  barrels  of  herrings  to  the  appellant  at 
Philadelphia,  the  expenses  incident  thereto,  the  price  at  which 


110       CASES  IN  THE  COURT  OF  APPEALS 

MORRIS  v.  BHICKXEY  &  CALDWELL. — 1827. 

the  herrings  were  sold,  the  amount  thereof  received,  and  the 
money  advanced  by  the  appellant  to  the  appellees.  A  com- 
mission afterwards  issued  to  Philadelphia  to  take  testimony. 
The  appellant  filed  the  necessary  interrogatories  to  obtain  proof 
of  the  items  in  his  account.  The  appellees  in  their  cross  in- 
terrogatories, not  even  insinuating  an  objection  to,  or  denial  of, 
the  receipt  of  any  of  the  sums  of  money  wherewith  they  were 
charged  in  the  account,  put  their  defence  solely  on  the  ground, 
that  they  were  entitled  to  a  credit  for  the  price  of  the  herrings 
sold  to  Joseph  Bennett  Eves,  (who  had  become  insolvent,) 
either  because  the  contents  of  the  note  he  had  given  therefor 
had  been  received  by  the  appellant,  or  that  he  had  rendered 
himself  personally  answerable  therefor,  as  an  agent  violating 
his  duty  to  his  principal,  in  selling  to  a  vendee,  without  credit, 
or  in  doubtful  circumstances;  both  of  which  facts  were  clearly 
disproved  by  the  testimony  taken  under  the  commission. 

The  appellees,  disappointed  in  the  defence  to  which  their 
cross  interrogatories  pointed,  at  the  trial  of  the  cause  sought  to 
protect  themselves  from  the  claim,  by  the  weakness  of  the  ap- 
pellant's proof,  and  to  that  end  prayed  the  court  to  instruct  the 
jury,  that  the  evidence  produced  was  not  sufficient  to  support  the 
action.  Which  instruction  the  court  gave;  and  from  that  deci- 
sion the  appellant  hath  sought  relief  at  the  hands  of  this  court, 
and  we  conceive  it  our  duty  not  to  withhold  it. 

ffozey,  the  clerk  of  the  appellant,  deposed  that  the  dealings 
of  the  parties,  as  referred  to  in  the  appellant's  statement,  (mean-r 
ing  his  account,)  did  take  place;  and  although  he  also  swears 
that  he  did  not  know  the  appellees,  and  that  he  knew  the  tacts 
he  had  testified,  from  his  having  been  a  clerk  of  the  appellant 
at  the  time  the  transaction  took  place,  we  by  no  means  think 
that  the  weight  ot  his  testimony  is  wholly  destroyed  thereby,  or 
that  in  candor  or  charity  this  court  can  impute  to  him  a  crime 
(which  scarcely  deserves  a  milder  name  than  perjury,)  of  having 
sworn  positively  to  facts  of  which  he  had  no  knowledge.  His 
testimony  will  bear  a  different  interpretation,  and  in  that  light 
we  are  disposed  to  view  it.  When  we  look,  therefore,  to  the  na- 
ture and  circumstances  of  the  claim,  the  proceedings  in  the  cause, 
and  th«  testimony  of  the  witness  Hozey,  the  intervention  of 
a  jury,  we  think  peculiarly  necessary  to  settle  the  rights  of  the 


OF  MARYLAND.  Ill 


NEWTON  v.  GRIFFITH. — 1827. 


parties.     We  consequently  dissent  from  the  opinion   delivered 
by  the  county  court,  and  reverse  their  judgment. 

JUDGMENT  REVERSED,  AND  PROCEDENDO  AWARDED. 


NEWTON,  et  al.  vs.  GRIFFITH,  el  al. — June,  1827. 

Before  the  act  of  1786,  ch.  45,  (to  direct  descents,)  a  devise  of  land  by  A 
•  o  his  son  J,  and  his  heirs,  and  other  land  to  his  son  G,  and  his  heirs;  and 
in  case  either  of  them  "should  decease,  having  no  lawful  issue  or  heirs  of 
his  body"  then  the  surviving1  son  "to  have  his  deceased  brother's  part  of 
the  land,"  to  him  and  his  heirs;  and  in  case  both  sons  "should  decease, 
leaving  no  lawful  heirs  of  their  bodies,"  then  all  the  aforesaid  lands  unto 
the  testator's  three  daughters,  S,  S,  &  N,  to  be  equally  divided  between 
them,  would  have  vested  in  J  and  G  each,  estates  tail  general,  in  the  lands 
respectively  devised  to  them,  with  cross  remainders  in  tail  general,  re- 
mainder to  S,  S,  &  N  for  life.  But  by  operation  of  that  act,  the  devise 
being  made  in  1792,  J  and  G  took  virtually  estates  in  fee  in  the  lands 
devised  to  them  respectively;  and  on  the  death  of  G,  without  issue  and 
intestate,  J,  and  S,  S,  and  N,  surviving  him,  J  took  by  descent  from 
him,  one-fourth  of  his  estate;  and  J  also  dying  without  issue  and  intestate, 
that,  with  the  whole  of  the  estate  devised  to  him  by  his  father,  descend- 
ed to  his  three  sisters  S,  S,  and  N,  as  his  heirs  at  law. 

On  a  bill  filed  against  S,  S,  and  N,  as  heirs  at  law  of  J — Held,  that  the  land 
which  thus  descended  from  J,  was  subject  to  be  sold  for  the  payment  of 
his  debts. 

The  words  "without  issue"  in  a  will,  when  applied  to  dispositions  of  real 
estate,  ex  vi  termini,  mean  an  indefinite  failure  of  issue,  if  there  be  no- 
thing in  the  will  restricting  it  to  a  failure  at  the  time  of  the  death  of  the 
first  devisee,  or  to  some  other  time  or  event. 

To  have  no  issue — to  die  having  no  issue,  and  to  die  without  issue,  are  tech- 
nically and  judicially  convertible  terms. 

The  word  leaving,  as  well  as  the  words  having  and  without,  in  devises — "and 
if  he  shall  die  without  leaving  any  issue" — "without  having  issue,"  or 
"without  issue,"  has  acquired  a  technical  judicial  decision,  and  when 
applied  to  real  estate,  means  an  indefinite  failure  of  issue 

In  dispositions  of  personal  property,  the  courts  generally  incline  to  the  con-' 
struing  a  limitation  after  a  dying  without  issue,  to  mean  a  dying  without 
issue  at  the  death  of  the  first  legatee,  in  order  to  support,  if  they  can,  the 
limitation  over;  yet  in  relation  to  real  estate,  the  construction  is  generally 
otherwise. 

The  circumstance  of  a  limitation  over,  being  to  a  survivor,  and  his  heirs,  or 
only  of  a  life  estate  to  a  person  in  esse,  has  not  the  effect,  in  dispositions 
of  real  estate,  in  either  case,  to  restrict  the  established  Icgul  meaning  of 
the  words,  "leaving  no  lawful  heirs  of  their  bodies,"  to  a  failure  at  the 
death  of  the  first  taker,  or  survivor. 

IF  there  be  a  devise  to  one  generally  of  freehold  and  personal  estates,  with- 


112  CASES  IN  THE  COURT  OF  APPEALS 

NEWTON  v.  GRIFFITH. — 1827. 

out  any  words  of  limitation,  he  will  take  an   estate  for  life  only,  in  the 
freehold,  but  the  personal  property  absolutely. 

By  the  act  of  1782,  ch.  23,  the  ancient  mode  of  docking  estates  tail,  by 
common  recovery,  is  abolished;  and  any  person  seized  of  any  estate  tail, 
in  possession,  remainder  or  reversion,  may  convey  the  same  in  the  same 
manner  and  form  that  a  tenant  in  fee  may. 

Before  the  passage  of  the  act  of  1786,  ch,  45,  estates  tail  were  not  liable  for 
debts  contracted  by  tenants  in  tail;  but  by  that  act  estates  tail  general, 
created  since  its  passage,  were  virtually  abolished,  and  converted  into 
estates  in  fee  simple,  and  have  now  all  the  incidents  of  lands  held  in  fee* 
they  are  descendible,  transferable  and  devisable,  and  subject  to  be  sold 
for  the  payment  of  debts,  as  estates  in  fee. 

Estates  tail  general,  divided  among  heirs,  taken  by  election  or  sold  by  com- 
missioners, are  held  in  fee  simple. 

By  the  act  of  1786,  ch.  45,  lands  held  in  fee  simple  and  fee  tail  general, 
created  since  its  commencement,  descend  first  to  the  child  or  children, 
and  their  descendants,  if  any,  equally;  and  if  no  children  01  descendants, 
to  collaterals  indefinitely. 

The  legislature  having  a  right  to  prohibit  the  creation  of  estates  tail,  must 
have  a  right  to  direct  in  what  manner,  lands  so  held  by  subsequent  crea- 
tion, should  descend. 

A  dying  intestate,  means  a  eying  without  making  a  valid  aad  operative  dis- 
position by  will. 

Estates  tail  general,  created  before  the  act  of  1786,  and  estates  tail  special, 
are  excepted  from  the  operation  of  that  act. 

APPEAL  from  Dorchester  County  Court,  sitting  as  a  court 
of  equity. 

The  facts  in  this  cause  are  fully  set  forth  in  the  opinion  of 
this  court,  delivered  by  the  chief  judge.  It  was  argued  at  June 
term  1825,  before  BUCHANAN,  Ch.  J.  and  EARLE,  STEPHEN, 
and  ARCHER,  J.  by 

J.  Bayly*  for  the  Appellants,  and  by 
Bullitt  and  Kerr,  for  the  Appellees. 

Curia  adv.  vult. 

BUCHANAN,  Ch.  J.  at  this  term,  delivered  the  opinion  of  the* 
court  The  controversy  in  this  case,  turns  upon  the  construc- 
tion of  the  will  of  Joseph  Griffith,  the  elder,  dated  the  6th  of 
February  1792,  and  of  the  act  of  1786,  ch  45,  s.  1,  the  act  to 
direct  descents. 

The  language  of  the  will,  (so  far  as  concerns  this  case,)  is, 
"I  give  and  devise  unto  my  son  Joseph,  Griffith,  my  present 
dwelling  plantation  whereon  I  now  live,  to  him,  my  said  son 
Joseph,  his  heirs  and  assigns  forever.  Item.  I  give  and  de- 


OF  MARYLAND.  113 

US.— -i • '  

NEWTOX  v.  GRIFFITH. — 1827. 

vise  unto  my  son  George  Griffith,  the  plantation  whereon  Levi 
Oram  now  lives,  lying  on  Transquakin  river,  or  a  branch 
rhereof,  to  him,  my  said  son  George,  his  heirs  and  assigns  for- 
ever; and  my  will  is,  that  all  the  land  which  I  am  now  pos- 
sessed of,  either  by  deed,  bond  or  patent,  be  equally  divided 
between  my  said  two  s"ons  Joseph  and  George,  according  to 
quantity  and  quality,  share  and  share  alike,  to  them,  their  heirs 
and  assigns  forever;  and  in  case  either  of  my  said  sons  should 
decease,  having  no  lawful  issue  or  heirs  of  his  body,  that 
then  the  surviving  son  to  have  his  deceased  brother's  part  or 
moiety  of  the  land  aforesaid,  to  him,  his  heirs  and  assigns  for- 
ever, as  aforesaid ;  and  in  case  both  my  said  sons  Joseph  and 
George  should  decease,  leaving  no  lawful  heirs  of  their  bo- 
dies, that  then  and  in  such  case,  I  give  and  devise  all  my  afore- 
said lands,  devised  as  aforesaid,  unto  my  three  daughters,  £0- 
phia,  Sarah,  and  Nancy  Griffith,  to  be  equally  divided  be- 
tween my  aforesaid  three  daughters."  George  Griffith,  one 
of  the  sons  and  devisees,  died  intestate  and  without  issue  in 
May  1814  after  the  death  of  the  testator,  who  died  seized  of 
the  devised  premises;  and  Joseph  Griffith*  the  other  son  and 
devisee,  died  also  intestate  and  without  issue,  in  November 
1S14,  without  leaving  personal  property  sufficient  for  the  pay- 
ment of  his  debts.  His  three  sisters,  Sophia,  Sarah  and 
Nancy,  who  survived  him,  and  are  still  living,  are  his  only 
heirs  at  law.  The  bill  in  this  case  was  filed  against  them  as 
such,  (and  their  husbands,)  and  seeks  to  subject  to  sale,  for  the 
payment  of  his  debts,  all  the  real  estate  of  which  he  died  seiz- 
ed. The  defendants  in  their  answer,  admit  that  he  died  seized 
in  fee  of  certain  lands  derived  to  him  by  inheritance  from  his 
mother,  which  descended  to  them,  his  sisters,  as  his  heirs  at 
law,  subject  to  his  debts;  but  they  claim  to  hold,  under  the 
will  of  Joseph  Griffith  the  elder,  all  the  land  devised  to  Jo- 
seph Griffith,  the  younger,  and  his  brother  George,  by  virtue 
of  the  limitation  over  to  them,  Sophia,  Sarah  and  Nancy,  on 
the  contingency  of  both  their  brothers,  Joseph  and  George, 
dying  without  "leaving  lawful  heirs  of  their  bodies;"  and  deny 
that  any  part  of  the  lands  so  devised,  descended  to  them  from 
Joseph  Griffith  the  younger,  as  his  heirs  at  law,  and  insist  that 
VOL.  i  15 


114        CASES  IN  THE  COURT  OF  APPEALS 

NEWTON  v.   GRIFFITH. — 1827. 

they  are  not  liable  for  his  debts;  and  a  decree  pro  forma 
passed  accordingly. 

The  case  is  brought  before  this  court  on  an  appeal  from  that 
decree;  and  the  question  to  be  decided  is,  what  estates  in  the 
lands  devised,  passed  to  Joseph  Griffith,  the  younger,  and 
George  Griffith,  respectively,  under  the  will  of  their  father, 
whether  "estates  tail  general,"  or  "estates  in  fee  simple,"  with 
cross  limitations  over  by  way  of  executory  devise,  as  the  law 
stood  before  the  passage  of  the  act  to  direct  descents? 

When  this  case  was  argued,  it  was  understood  that  a  cause 
was  then  depending  in  this  court  on  the  western  shore,  in 
which  the  same  question  was  virtually  involved;  it  was  there- 
fore thought  expedient  to  hold  this  case  under  advisement  un- 
til that  should  also  be  heard.  That  cause  has  since  been  de- 
cided. It  was  the  case  of  Dallam  vs.  Dallam,  7  Harris  8? 
Johnson,  220,  and  depended  upon  the  construction  of  a  devise 
in  the  will  of  Frances  Middleware  made  in  August  1755, 
which  is  in  these  words:  "I  give  and  devise  unto  the  afore- 
said Richard  Dallam  and  Josias  Dallam,  and  to  their  heirs 
and  assigns  forever,  as  tenants  in  common,  equally  to  be  divid- 
ed between  them,  all  that  tract  of  land  called  Palmer's  Fo- 
rest, lying  on  the  west  side  of  Swan  Creek;  but  if  either  of 
them  dies  before  the  age  of  twenty-one  years,  and  without  is- 
sue, then  I  will  that  one  equal  half  part  of  the  said  land  be  held 
and  enjoyed  by  Goldsmith  Garrettson,  (son  of  George  and 
Martha  Garrettson,}  his  heirs  and  assigns  forever,  to  whom 
I  give  and  devise  the  same  accordingly.  And  in  case  the  said 
Richard  Dallam  and  Josias  Dallam  should  both  die  before 
the  age  of  twenty-one  years  as  aforesaid,  and  without  issue, 
then  I  give  and  devise  the  whole  of  Palmer's  Forest  to  the 
aforesaid  Goldsmith  Garrettson,  his  heirs  and  assigns  forever." 
It  was  there  contended,  that  the  words  "without  issue"  meant 
an  indefinite  failure  of  issue;  that  is,  a  failure  of  issue  when- 
ever it  might  occur,  which  was  a  contingency  too  remote  to 
sustain  a  limitation  over  by  way  of  executory  devise;  and 
that,  therefore  the  devisees,  Richard  and  Josias  Dallam  re- 
spectively, took  estates  tail.  But  it  was  held,  on  full  conside- 
ration and  an  examination  of  all  the  principal  authorities  relat- 
ing to  the  subject,  that  Richard  and  Josias  Dallam  each  took 


OF  MARYLAND.  115 


NEWTON  v.   GRIFFITH. — 1827. 


an  estate  in  fee,  in  the  premises  respectively  devised  to  them, 
defeasible  by  the  event  of  his  dying  before  he  attained  the  age 
of  twenty-one  years  and  without  issue;  not  on  the  ground  that 
the  words  "without  issue"  alone  mean  a  failure  of  issue  at  the 
time  of  the  death  of  the  devisee,  or  that  a  limitation  over  of 
real  estate,  on  an  indefinite  failure  of  issue,  is  good  by  way  of 
executory  devise;  on  the  contrary  the  court  there  explicitly 
lay  down,  as  settled  and  established  rules  not  now  to  be  ques- 
tioned, 1st.  That  no  limitation  can  be  good  as  an  executory  de- 
vise, unless  it  be  on  a  contingency  that  must  happen,  if  at  all, 
within  a  life  or  lives  in  being,  and  twenty-one  years  and  a  frac- 
tion of  a  year  afterwards,  allowing  for  the  time  of  gestation; 
and  that  if  it  be  on  an  event,  which  may  or  may  not  happen 
within  the  prescribed  limits,  it  is  void  from  the  beginning,  no 
matter  how  the  fact  turns  out  afterwards.     2dly.  That  wherever 
there  is  a  devise  of  real  estate  to-  one  and  his  heirs,  with  a  li- 
mitation over,  if  he  should  die  without  issue,  the  general  words 
"without  issue"  mean  an  indefinite  failure  of  issue;  that  is,  not 
a  failure  of  issue  at  the  time  of  the  death  of  the  devisee,  but  a 
failure  whenever  they  shall  become  extinct,  without  reference 
to  any  particular  time  or  event,  if  there  be  nothing  in  the  will 
clearly  showing  a  different  intention  on  the  part  of  the  testator, 
and  restricting  the  failure  to  the  time  of  the  devisee's  death,  or 
to  some  other  time  or  event;  and  that  in   every  such  case  the 
contingency  is  too  remote  to  support  an  executory  devise,  as  it 
may  not  happen  within  the  time  prescribed;  but  the  first  devi- 
see takes  an  estate  tail,  and  the  limitation  over  operates  as  a 
contingent  remainder,  expectant  upon  the  precedent  particular 
estate  tail.     But  3dly.  That  wherever  there  are  expressions  in 
the  will  clearly  restricting  the  "dying  without  issue,"  to  a  fail- 
ure of  issue,  at  the  time  of  the  death  of  the  first  taker,  or  to 
some  other  time  or  event  which  must  occur,  if  at  all,  within 
the  time  allowed  for  the  happening  of  a  contingency,  on  which 
an  executory  devise  may  be  limited^  there  the  first  devisee  takes 
an  estate  in  fee  simple,  and  the  limitation  over  is  void  as  a  con- 
tingent remainder,  but  good  by  way  of  executory  devise.   And 
on  the  peculiar  structure  of  the  devise  in  the  will  of  Frances 
Middlemore,  on  which  the  question  in  that  case  arose,  the  dy- 
ing "without  issue"  was  held  to  be  clearly  restricted  to  a  fail- 


116       CASES  IN  THE  COURT  OF  APPEALS 

NEWTOKT  v.   GRIFFITH. — 1827. 

ure  of  issue  at  the  time  of  the  death  of  the  first  devisees  re- 
spectively, the  words  being,  "but  it  either  of  them  dies  be- 
for  the  age  of  twenty-one  years,  and  without  issue,  then,"  &c. 
which  construction,  it  is  believed,  is  sustained  by  all  the  deci- 
sions on  like  expressions,  that  are  worthy  of  consideration,  and, 
they  are  very  numerous.  Relying  then  confidently  upon  the 
authority  of  the  case  of  Dallam  vs.  Dallam,  which  was  decid- 
ed on  much  deliberation,  for  the  correctness  of  the  principles 
it  asserts,  and  taking  it  as  our  principal  guide,  without  again 
wading  through  the  whole  multitude  of  other  authorities  relat- 
ing to  the  subject,  but  invoking  to  our  aid  such  only  as  are 
thought  to  apply  most  directly  to  the  devise  in  question,  and  ex- 
amining such  as  are  most  relied  upon  by  the  counsel  for  the  ap- 
pellees, it  remains  only  to  be  seen,  whether  the  expressions  used 
are  such  as  import,  in  legal  understanding,  an  "indefinite  failure 
of  issue,"  or  a  failure  of  issue  "at  the  time  of  the  death  of  the  first 
devisees  respectively."  If  the  former,  we  have  seen,  that  ac- 
cording to  the  settled  rules  of  construction,  it  is  a  contingency 
too  remote  to  support  an  executory  devise,  and  that  the  words 
"without  issue,"  when  applied  to  dispositions  of  real  estate, 
ex  vi  termini,  mean  an  indefinite  failure  of  issue,  if  there  be 
nothing  in  the  will  restricting  it  to  a  failure  at  the  time  of  the 
death  of  the  first  devisee,  or  to  some  other  time  or  event. 

In  this  case  the  limitation  over  to  the  surviving  son,  is,  in  case 
cither  of  them  should  die,  "having  no  lawful  issue  or  heirs  of 
his  body,"  and  this  word  "having"  is  supposed  to  convey  a 
different  meaning  from  the  word  "without,"  and  to  distinguish 
it  from  the  case  of  a  limitation  over  on  a  dying  "without  issue." 
The  force  of  that  distinction  is  not  clearly  perceived;  to  have 
no  issue,  is  to  be  without  issue,  and  to  die  "having  no  issue," 
and  to  die  "without  issue,"  seem  to  be  convertible  terms,  for 
to  die  without  issue,  is  to  die  without  having  any  issue. 

But  without  pushing  this  discussion,  it  will  be  found,  by  re- 
ftrence  to  the  authorities,  that  the  question  has  long  since  been 
judicially  settled,  and  that  they  are  held  to  mean  the  same 
thing.  In  Monday's  case,  9  Coke  127,  there  was  a  devise  by 
a  lather  to  his  son  Thomas  of  a  house,  and  "if  he  have  no  ia- 
sue  male,"  then  to  his  son  Richard;  and  the  question  was, 
•"what  estate  did  Thomas  take?"  And  it  was  resolved  that  he 


OF  MARYLAND.  117 


NEWTON  ».  GRIFFITH. — 1827. 


took  an  estate  tail.  Because,  (in  the  language  of  the  court)  he 
(the  father)  saith,  "if  he  hath  no  issue  male,  his  son  Richard 
to  have  it,  which  is  as  much  as  to  say,  if  Thomas  dies  without 
issue  male,  which  words  are  sufficient  to  create  an  estate  tail 
in  him.  In  Forth  vs.  Chapman,  1  P.  Wms.  663,  the  master 
of  the  rolls  cited,  and  relied  much  upon  Lee's  case,  1  Leo.  285, 
where  a  father  devised  lands  to  his  son,  "and  if  he  should  de- 
part this  life  not  having  issue,"  then  over;  which  was  resolved 
to  be  an  indefinite  failure  of  issue.  And  in  Cooke  vs.  De 
Vandes,  9  Ves.  197,  it  was  held,  that  even  in  a  bequest  to  one 
and  the  heirs  of  his  body  of  a  leasehold  estate,  with  a  limita- 
tion over  "if  he  has  no  such  heirs,''  the  words  "if  he  has  no 
such  heirs,"  point  to  an  indefinite  failure  of  issue,  and  the  limi- 
tation over  is  void.  And  in  the  same  case  a  distinction  was 
taken  between  those  words,  and  the  words  "and  if  he  leaves  no 
such  heirs;"  which  latter  words  "and  if  he  leaves  no  such  heirs," 
were  on  the  authority  of  Forth  vs.  Chapman,  held  to  mean  a 
failure  at  the  time  of  his  death,  when  applied  to  a  disposition 
of  personal  property;  and  in  Sir  Samuel  Romilly  vs.  James, 
6  Taunt  on  j  263,  "having;  no  issue  of  either  of  their  bodies," 
&c.  was  held  to  mean  an  indefinite  failure  of  issue. 

It  was  ingeniously  urged  in  argument,  that  the  limitation 
over  to  the  "surviving"  son,  shows  what  the  testator  intended 
by  the  words  "having  no  lawful  issue,"  &c.  and  explains  and 
restricts  them  to  mean  a  dying  by  the  other,  without  issue 
living  at  the  time  of  his  death;  and  in  support  of  that  position 
the  counsel  relied  upon  Hughes  vs.  Sayer,  1  P.  Wms.  534. 
Fosdick  vs.  Cornell,  1  Johns  Rep.  440.  Jackson  vs.  Blan- 
show,  3  Johns,  Rep.  292.  Moffett  vs.  Strong,  10  Johns.  Rep. 
12.  Jackson  vs.  Stoats,  11  Johns.  Rep.  337,  and  Anderson 
vs.  Jackson,  16  Johns.  Rep.  382.  Hughes  vs.  Sayer,  is  a  case 
of  a  bequest  of  personal  property.  And  here  it  may  be  proper 
to  remark,  that  though  in  respect  to  dispositions  of  personal 
property,  courts  generally  incline  to  the  construing  a  limitation 
after  a  dying  without  issue,  to  mean  a  dying  without  issue  at 
the  death  of  the  first  legatee,  in  order  to  support,  if  they  can, 
the  limitation  over,  and  for  that  purpose  lay  hold  on  any  word 
or  circumstance  in  the  will,  however  slight,  that  may  seem  to 
•afford  a  ground  for  such  a  construction;  yet  that  in  relation 


118  CASES  IN  THE  COURT  OF  APPEALS 

.  -  -         .NEWTON  v.  GRIFFITH. — 1827.. 

to  real  estate  the  construction  is  generally  otherwise;  and  in  or- 
der to  tie  up  and  confine  the  generality  of  the  words  "dying 
without  issue,"  to  a  dying  without  issue  living  at  the  time 
of  the  death  of  the  party,  there  must  be  something  in  the 
will  clearly  showing  that  to  have  been  the  intention  of  the 
testator,  and  restricting  it  to  that  time.  And  so  far  have 
courts  gone  in  support  of  limitations  of  personal  property, 
as  sometimes  to  draw  almost  imperceptible  shades  of  distinc- 
tion. In  forth  vs.  Chapman)  1  P.  Wins.  663,  where  the 
same  words,  "and  leave  no  issue,"  &c.  in  the  same  clause 
of  a  will  making  a  dispbsition  of  real  and  personal  estate, 
were  held  in  relation  to  the  real  estate,  to  mean  an  in*- 
definite  failure  of  issue,  and  as  to  the  personal  estate,  a  failure 
at  the  death  of  the  first  taker,  the  Lord  Chancellor  said, 
"the  reason  why  a  devise  of  a  freehold  to  one  for  life, 
and  if  he  die  without  issue,  then  to  another,  is  determined 
to  be  an  estate  tail,  is  in  favour  of  the  issue,  that  such  may 
have  it,  and  the  intent  take  place;  but  there  is  the  plainest  dif- 
ference betwixt  a  devise  of  a  freehold  and  a  term  for  years;  for 
in  the  devise  of  the  latter  to  one,  and  if  he  die  without  issue, 
then  to  another,  the  words,  if  he,  die  without  issue  cannot  be 
Supposed  to  have  been  inserted  in  favour  of  such  issue,  since 
they  cannot  by  any  construction  have  it;"  and  the  same  is  said 
in  Target  vs.  Gaunt,  1  P.  Wins.  432. 

Upon  the  ground  of  the  distinctions,  which  courts  have  felt 
themselves  authorised  to  take,  between  cases  of  real  and  per- 
sonal estate,  the  case  of  Hughes  vs.  Sayer  was  determined, 
and  is  not,  therefore,  deemed  applicable  to  this  case.  There 
the  limitation  over  was  of  personal  property  to  the  survivor  of 
two  legatees,  on  the  contingency  of  either  of  them  dying  with- 
out "children,"  and  it  was  determined,  that  if  the  word  "chil- 
dren" should  in  that  case  be  understood  as  synonymous  with 
"issue,"  the  limitation  over  would  be  void.  But  that  it  could 
not  be  taken  in  that  sense,  (which  would  mean  whenever  there 
should  be  a  failure  of  issue;)  because  the  immediate  limitation 
over,  was  to  the  survivor,  and  it  was  not  probable,  that  if  either 
of  the  legatees  should  die  leaving  issue,  the  survivor  would  live 
to  see  a  failure  of  issue,  and,  therefore,  the  word  "children," 
was  construed  not  to  mean  "issue,"  but  "children  living"  at 


OF  MARYLAND.  119 


NEWTON  v.  GRIFFITH.  — 1827. 


the  time  of  the  death  of  the  parent.  In  Hope  vs.  Taylor,  1  Burr. 
268,  where  there  was  a  disposition  of  the  whole  of  the  testa- 
tor's real  and  personal  estate  to  several,  with  a  limitation  over 
to  the  survivors,  if  either  should  die  without  issue  lawfully  be- 
gotten, it  was  adjudged  to  be  an  estate  tail  in  the  real  property, 
a/id  that  the  limitation  over  of  the  personal  estate  was  void  be- 
ing after  "a  dying  without  issue."  Here  we  have  a  clear  evi- 
dence of  the  lengths  to  which  courts  will  go,  and  of  the  wire 
drawn  distinctions  that  are  taken  in  support  of  limitations  of 
personal  property.  In  both  these  cases,  a  limitation  over  of 
personal  property  after  a  failure  of  "issue"  generally,  was  held 
to  be  bad;  but  in  Hughes  vs.  Sayer,  because  the  word  "chil- 
dren" was  used  instead  of  "issue,"  it  was  construed  to  mean  a 
dying  without  children  at  the  time  of  the  party's  death.  But 
has  that  case  any  resemblance  to  this?  Most  clearly  it  has  not,. 
There  the  limitation  was  of  personal  property,  and,  being  also 
entirely  personal  to  the  survivor,  (the  legatee  over,)  unless  it 
vested  in  the  compass  of  the  life  of  such  survivor,  it  never 
could  by  any  possibility  take  effect  at  all,  there  being  no  person 
beyond  him,  in  whom  it  could  vest.  But  is  that  this  case? 
Here  the  devise  is  of  real  estate,  and  the  limitation  over,  to 
the  survivor  and  his  heirs.  It  is  not  necessary,  therefore,  to 
give  effect  to  the  limitation  over,  that  the  survivor  should  be 
alive  at  the  happening  of  the  event  on  which  it  is  made  to  de- 
pend— the  failure  of  issue.  The  whole  property  by  the  devise, 
is  to  go  over,  on  the  happening  of  that  event,  to  the  survivor 
in  his  own  person,  if  living,  and  if  dead,  to  his  heirs  who 
would  be  capable  of  taking  at  whatever  period  of  time  the 
failure  of  issue  might  happen.  Fosdick  vs.  Cornell  was  a  case 
of  real  estate,  where  the  devise  was  by  a  father,  of  different  por- 
tions of  his  estate,  to  different  children,  in  fee,  with  a  limitation 
of  the  lands  over  to  the  survivors,  to  be  equally  divided  between 
them,  "if  any  of  them  should  happen  to  die,  without  heirs 
male  of  their  own  bodies."  Thompson,  J.  in  delivering  the 
opinion  of  the  court,  cited  Keily  vs.  Fowler,  Fearne's  Ex. 
Dev.  236.  Pells  vs.  Brown,  Cro.  Jac.  590.  Porter  vs.  Brad- 
ly,  3  T.  R.  145.  Hughes  vs.  Sayer,  1  P.  Wms.  534,  and 
JRoe  vs.  Jeffery,  7  T  JK.  589.  Keily  vs.  Fowler  was  referred 
to  for  the  benefit  of  the  observation  of  Lord  Chief  Justice  Wil- 


120  CASES  IN  THE  COURT  OF  APPEALS 

NEWTOIC  v.  GRIFFITH. — 1827. 

•mot,  "thai  he  would  lay  hold  of  the  most  trifling  circumstance 
to  give  effect  to  the  apparent  intention  of  the  testator."  But 
let  it  be  observed  that  the  question  in  that  case  arose  on  a  be- 
quest of  personal  property,  in  relation  to  which  we  have  seen 
on  what  slight  grounds  courts  have  construed  a  dying,  &c, 
without  issue,  to  mean,  without  issue  living  at  the  death  of  the 
first  taker.  But  not  so  in  relation  to  real  estate,  where  the  in- 
troduction of  the  word  "issue,"  &c.  is  supposed  to  be  intended 
by  the  testator  for  the  benefit  of  such  issue,  who,  if  there  should 
chance  to  be  any,  might  take  after  the  father's  death.  But  in, 
relation  to  personal  property,  the  same  intention  is  not  ascribed 
to  the  testator,  for  the  reason  assigned  in  Forth  vs.  Chapman, 
and  Target  vs.  Gaunt.,"  that  in  such  case,  the  father  takes  the 
whole,  which  on  his  death,  will  not  go  to  his  issue,  but  to  his 
executors.  Pells  vs.  Brown,  was  decided  on  the  force  of  the 
peculiar  expressions  used  in  the  devise,  "if  he  died  without  is- 
sue living  William  his  brother,"  then  to  William,  &c.  which 
do  not  belong  to  the  limitation  now  under  consideration. 
fJughes  vs.  Sayer,  seems  to  have  been  much  relied  upon. 
Judge  Thompson  says,  in  his  argument,  "if  the  reason  assign- 
ed for  the  decision  in  that  case  be  solid,  it  applies  with  full 
force  to  the  one  before  the  court;  the  only  difference  between 
the  two  cases  is,  that  the  one  relates  to  personal,  and  the  other 
to  real  estate."  And  that,  with  very  great  deference,  is  con- 
ceived to  be  a  material  difference,  seeing  the  settled  distinctions 
which  have  been  taken  between  dispositions  of  those  different 
descriptions  of  property. 

There  is  however  another  difference  between  the  two  cases, 
I  mean  a  difference  between  the  particular  expressions  used.  In 
Fosdick  vs.  Cornell,  the  words  are,  " without  heirs  male;"  in 
Hughes  vs.  Sayer,  "without  children;"  and  it  is  worthy  of  re- 
mark, that  in  that  very  case  of  Hughes  vs.  Sayer,  a  distinction 
was  taken  between  the  words,  "children"  and  "issue,"  in  or- 
der to  sustain  the  limitation  over,  on  the  ground,  that  if  the 
word  "children"  was  to  be  understood  in  that  case,  in  the  same 
sense  as  "issue,"  which  meant,  whenever  there  should  be  a 
failure  of  issue,  the  bequest  over  would  be  void,  the  contingen- 
cy being  too  remote;  and  there  too,  the  limitation  over  was  to 
the  surviving  legatee.  So  that  proceeding  upon  that  dislinc- 


OP  MARYLAND. 


NEWTON  v.  GHIFFITU. — 1827. 


tion,  Hughes  vs.  Sayer  would  rather  seem  to  be  an  authority 
against  the  construction  given  to  the  devise  in  Fosdickvs.  Cor- 
nell. 

It  has  also  been  seen,  that  in  Hope  vs.  Taylor,  a  limitation 
over  of  personal  property  to  the  "survivor"  on  a  dying  "with- 
out issue,"  was  held  to  be  void,  as  on  too  remote  a  contingen- 
cy. In  Porter  vs.  Bradley  the  words  are  "leaving  no  issue 
behind  him;"  and  if  it  be  admitted  that  that  case  was  properly 
decided  on  the  peculiar  expressions  used,  yet  it  is  a  very  dif- 
ferent case  from  this,  the  words  here  being,  "having  no  lawful 
issue,"  &c.  It  is  true,  that  Lord  Kenyan  in  his  observations, 
went  farther  than  the  case  required,  and  said,  that  if  only  the 
words  "leaving  no  issue"  had  been  used,  and  the  words  "behind 
him"  omitted,  they  would  be  restrained  to  leaving  issue  at  the 
time  of  the  death.  And  denied  the  distinction  taken  in  Forth 
vs.  Chapman,  between  the  effect  of  the  same  words  "and  leave 
no  issue,"  as  applied  to  real  and  personal  property,  in  which 
he  certainly  is  not  sustained.  Indeed  afterwards  in  Daintry 
vs.  Daintry,  6  T.  R.  307,  where  the  disposition  was  of  all  his 
real  and  personal  estate,  by  a  father  to  his  son,  with  a  limita- 
tion over  to  his  brother,  "if  his  son  should  happen  to  die  with- 
out leaving  issue  of  his  body,"  the  same  judge  determined, 
that  the  son  took  an  estate  tail  in  the  real  estate;  but  that  the 
limitation  over  of  the  personal  property  was  good,  the  contin- 
gency not  being  too  remote;  and  said  it  was  precisely  like  the 
case  of  Forth  vs.  Chapman.  Which  case  of  Forth  vs.  Chap- 
man has  never  been  shaken.  In  Roe  vs.  Jeffery,  the  devise 
was  to  T.  F.  of  real  estate,  and  his  heirs,  "but  in  case  he  should 
depart  this  life  and  leave  no  issue,"  then  the  house,  &c.  to  go 
to  E,  Af  and  S,  or  the  survivor  or  survivors  of  them,  to  be 
equally  divided  between  them,  share  and  share  alike.  And  the 
limitation  over  was  held  to  be  good  by  way  of  executory  de- 
vise. "The  principal  reason"  (says  Judge  Thompson,}  "as- 
signed for  this  conclusion  was,  that  the  devise  over  was  to  per- 
sons then  in  existence."  It  would  seem,  however,  as  if  the 
point  of  that  case,  had  not  been  attended  to,  for  simply  the  de- 
vise being  to  persons  in  existence,  w  s  not  the  principal  reason 
of  the  decision;  but  the  limitation  over  being  for  life,  to  per- 
sons in  esse,  was  the  circumstance  most  relied  upon. 
VOL.  i.  16 


122  CASES  IN  THE  COURT  OP  APPEALS 

NEWTOIT  t1.  GRIFFITH. — 1827. 

No  such  circumstance  exists  here;  on  the  contrary,  the  limi- 
tation over  to  the  surviving  son,  is  in  fee.  Looking  to  the 
grounds  then,  on  which  Fosdick  vs.  Cornell  was  decided,  (and 
in  Anderson  vs.  Jackson,  we  are  told  by  Chancellor  .Kent,  who 
was  the  presiding  judge  at  the  time,  that  Porter  vs.  Bradley 
and  Roe  vs.  Jeffery  were  the  guides  to  that  decision,)  we  can- 
not yield  to  the  authority  of  that  case,  in  giving  a  construction 
to  the  limitation  over  in  this  will,  to  the  surviving  devisee. 
Jackson  vs.  Blanshaw,  Jackson  vs.  Stoats,  and  Anderson  vs. 
Jackson,  are  made  to  rest  on  the  authority  of  Fosdick  vs.  Cor- 
nell; and  in  Mojfett  vs.  Strong-,  the  question  relates  to  person- 
al property.  But  the  authorities  are  more  than  abundant  tc 
show  that  the  circumstance  of  a  limitation  over  being  to  a  sur- 
viving devisee,  has  not  the  controling  force  contended  for.  In 
Shadoch  vs.  Cowley,  Cro.Jac.  695,  the  devise  was  to  Ji,  and 
his  heirs,  of  land  in  B,  and  to  C,  and  his  heirs,  of  land  in  D, 
and  that  the  survivor  should  be  heir  to  the  other,  if  either  diet! 
without  issue.  The  'question  raised  was,  whether  they  took 
immediate  estates  tail,  or  contingent  estates?  And  it  was  held, 
that  they  respectively  took  immediate  estates  tail,  with  cross 
remainders  in  fee.  And  the  court  took  a  distinction  betweeh 
such  a  devise,  and  a  devise  to  one,  and  if  he  die  without  issue 
"in  the  life  of  another,"  or  "before  such  an  age."  No  two 
cases  can  be  found  bearing  a  closer  resemblance  to  each  other 
than  that,  and  this.  In  Hope  vs.  Taylor,  before  adverted  to, 
the  limitation  is  in  these  words,  "if  either  of  the  persons  be- 
fore named,  die  without  issue  lawfully  begotten,  then,  &c.  shall 
be  divided  equally  between  them  that  are  left  alive;"  and  Roe 
vs.  Scott  4*  Smart,  27  Geo.  Ill,  to  be  found  in  a  note  in 
Fearne's  Ex.  Dev.  473,  is  of  the  same  character  and  exaetly 
in  point.  It  cannot  be  necessary  to  prosecute  this  part  of  the 
inquiry  any  farther. 

The  limitation  over  to  the  daughters,  is  on  the  contingency 
of  both  the  sons  dying,  "leaving  no  lawful  heirs  of  their 
bodies;"  and  it  has  been  supposed,  on  the  authority  of  Porter 
vs.  Bradley,  that  the  word  "leaving,"  restricts  it  to  issue  living 
"at  the  death  of  the  party,"  consequently  that  the  contingency- 
is  not  too  remote,  and  that  the  limitation  over  to  the  daughters 
is  good  by  way  of  executory  devise.  But  that  word  "leaving," 


OF  MARYLAND.  123 


NEWTON  v.   GRIFFITH. — 1827. 


as  well  as  "having,"  and  "without,"  has  acquired  a  technical 
judicial  sense,  and  like  them,  when  applied  to  real  estate,  means 
an  indefinite  failure  of  issue.  It  was  so  held  in  Forth  vs.  Chap- 
man; but  otherwise  in  relation  to  personal  property,  though 
both  embraced  in  the  same  devise.  In  Dennvs.  Shenton, 
Cowp.  410,  where  the  limitation  over  was  of  real  estate,  after 
a  dying  without  "leaving"  issue,  &c.  it  was  held  to  pass  an 
estate  tail  to  the  first  taker;  and  the  distinction,  when  applied 
to  personal  property,  was  expressly  stated  by  Lord  Mansfield. 
In  Porter  vs.  Bradley  it  is  true,  Lord  Kenyan  denied  that  such 
a  distinction  existed,  though  that  case  was  decided  on  its  pecu- 
liar expressions.  But  afterwards  in  Daintry  vs.  Daintry,  he 
himself  adopted,  and  acted  upon,  the  same  distinction.  And 
in  Tenry  vs.  rfgar,  12  East,  253,  where,  after  a  devise  in  fee 
to  a  son  and  daughter,  there  was  a  limitation  over  in  fee,  in 
case  the  first  devisees  "should  happen  to  die  without  leaving 
any  child  or  issue,"  it  was  held,  that  the  first  devisees  took  an 
estate  in  tail,  Lord  Ellenborough  took  occasion  to  speak  rather 
uncourteously  of  Porter  vs.  Bradley. 

It  was  further  urged  by  the  defendants'  counsel,  that  the  limi- 
tation over  to  the  daughters,  being  only  of  a  life  esiate,  the 
words  "leaving  no  lawful  heirs  of  their  bodies,"  must  be  con- 
strued to  mean,  issue  living  at  the  death  of  the  surviving  son. 
And  that  is  a  point  not  without  difficulty;  the  question  being, 
whether  the  circumstance  of  a  limitation  over,  being  only  of  a 
life-estate,  to  a  person  in  esse,  shall  have  the  effect  to  narrow 
and  restrict  the  established  legal  meaning  of  the  words,  "an 
indefinite  failure  of  issue,"  to  a  failure  at  the  death  of  the  first 
taker?  If  it  arose  on  a  bequest  of  personal  property,  there 
would,  perhaps,  at  this  day,  be  little  room  tor  doubt;  the  word 
"leaving,"  alone,  being  held  sufficient  to  restrict  the  limitation 
to  a  definite  failure  of  issue,  on  the  settled  judicial  distinction 
between  cases  of  real  and  personal  estate.  And  perhaps  in. 
such  a  case,  that  word  "leaving,"  would  derive  additional  force 
from  the  circumstance  of  the  limitation  over  being  only  for 
life.  But  Roe  vs.  Jeffery,  which  was  a  case  of  real  estate,  has 
been  cited  and  much  relied  on  in  support  of  the  restricted  con- 
struction contended  for  of  this  devise;  and  the  decision  in  that 
<iasc  produces  the  only  difficulty  that  is  felt  in  this,  There, 


124  CASES  IN  TH£  COURT  OF  APPEALS 

NEWTOS  v.  GRIFFITH. — 1827. 

however,  the  word  "leave"  was  chiefly  relied  upon  in  argu- 
ment, as  having  the  effect  to  show  that  the  testator  meant  a 
failure  of  issue  at  the  death  of  the  first  taker,  on  the  authority 
of  Porter  vs.  Bradley,  in  which  the  distinction  taken  in  Forth 
vs.  Chapman,  (where  the  words  are  the  same  as  in  Roe  vs. 
Jejfery,)  between  a  devise  of  a  freehold,  and  of  a  chattel  in- 
terest, is  rejected  by  Lord  Ken-yon,  who  said  "it  would  be 
very  strange  if  these  words  had  a  different  meaning  when 
applied  to  real  and  to  personal  property,"  and  that  "the 
distinction  was  not  founded  in  law."  And  yet  it  has  been 
seen,  that  afterwards  in  Daintry  vs.  Daintry,  the  same  judge 
expressly  recognized  and  adopted  that  very  distinction.  Not- 
withstanding which,  he  said  in  Roe  vs.  Jeffery,  that  "he 
was  not  prepared  to  unsay  what  he  had  said  in  Porter  vs. 
Bradley."  And  although  he  adverted  to  the  circumstance, 
that  the  limitation  over  was  to  persons  then  in  existence,  and 
that  life  estates  only  were  given  to  them,  as  tending  to  show 
that  the  testator  intended  a  failure  of  issue  at  the  death  of  the 
first  taker;  yet  it  is  clear  that  he  did  not  rely  upon  that  alone, 
but  only  called  it,  as  a  mere  circumstance,  in  aid  of  the  words 
"and  leave  no  issue,"  which  alone,  in  Porter  vs.  Bradley,  he 
had  construed  to  mean,  issue  living  at  the  death  of  the  first  de- 
visee; but  which  we  have  seen  is  contrary  to  all  the  authori- 
ties; that  expression  in  relation  to  real  estate,  having  the  same 
established,  technical  import,  as  the  words  "without  issue;" 
that  is,  a  failure  of  issue  whenever  that  may  happen,  without 
reference  to  any  particular  time  or  event.  Roe  vs.  Jeffery, 
therefore,  can  only  stand  on  the  ground,  that  the  circumstance 
of  a  limitation  over,  being  of  a  life  estate  to  one  in  esse,  is  of 
itself  sufficient  to  restrict  the  meaning  to  a  definite  failure  of 
issue,  on  the  supposition  that  the  testator  must,  in  such  a  case, 
have  so  intended;  because,  the  limitation  must  take  effect,  in 
the  course  of  a  life  in  being,  if  at  all,  a  ground  on  which  alone 
Lord  Kenyan  did  not  himself  choose  to  rest  it.  And  in  Denn 
vs.  Shenton,  Cowp.  410,  where  the  devise  was  to  one,  and  the 
heirs  of  his  body,  and  their  heirs  forever,  and  in  case  he  should 
die  "without  leaving  issue  of  his  body,"  then  to  W.  G,  in  fee, 
chargeable  with  the  payment  of  one  hundred  pounds  to  A,  the 
testator's  niece,  within  one  year  after  W.  G,  or  his  heirs,  should 


OP  MARYLAND.  12s 


NEWTON  v.  GRIFFITH. — 1827. 


be  possessed  of  the  premises,  it  was  held,  that  the  first  devisee 
took  an  estate  tail.  And  Lord  Mansfield  asked  Mr.  Coivper, 
"if  he  knew  of  any  case  where,  upon  a  dying  without  issue, 
those  words  had  been  confined  to  a  dying  without  issue  living 
at  the  time  of  the  death,"  and  said  the  distinction  was  between 
a  devise  of  lands  and  personal  estate;  that  in  the  latter  case,  the 
words  were  taken  in  their  vulgar  sense,  that  is,  "dying  with- 
out issue  living  at  the  time  of  his  death;"  and  in  the  former,  in 
a  legal  sense,  that  is,  "when  there  is  a  failure  of  issue.' '  And 
yet  in  that  case  the  testator  would  seem  to  have  contemplated 
the  limitation  ever  taking  effect,  within  the  compass  of  a  life  in 
being,  the  payment  of  the  legacy  being  directed  to  be  made  to 
his  niece  then  in  existence,  within  one  year  after  the  devisee 
over  should  be  possessed  of  the  premises;  which  could  not  be, 
unless  the  contingency,  on  which  the  limitation  was  made  to 
depend,  happened  in  the  lifetime  of  the  niece.  And  that  case 
looks  quite  as  much  to  a  definite  failure  of  issue,  as  Roe  vs. 
Jfffery;  but  the  court  held  themselves  bound  by  the  technical 
legal  sense  of  the  words,  and  not  at  liberty  to  adopt  their  vul- 
gar sense.  In  Fearne's  Ex.  Dev.  by  Butler,  488,  and  2  Tho- 
mas's Co.  Litt.  648,  649,  (note  c,)  it  is  said,  that  an  executory 
devise  for  life  to  one  in  esse,  to  take  place  after  a  dying  with- 
out issue  of  another,  "may  be  good;"  and  they  both  refer  to 
Lyde  vs.  Lyde>  1  T.  JR.  598,  and  Trafford  vs.  Boehm,  3  Atk. 
449,  which  are  both  cases  of  personal  estate. 

The  distinction,  as  has  often  been  observed,  is  between  real 
and  personal  estate;  and  narrow  as  that  distinction  may  seem 
to  be,  it  is  sanctioned  by  the  different  rules  of  law,  applicable 
to  these  respective  species  of  property.  If  there  be  a  devise  to 
one  generally,  of  freehold  and  personal  estates,  without  any 
words  of  limitation,  it  is  very  clear  that  he  will  take  an  estate 
for  life  only  in  the  freehold,  but  the  personal  property  abso- 
lutely; though  it  is  most  probable  that  in  such  a  case  the  testa- 
tor means  to  give  the  same  absolute  interest  in  both. 

The  rule  is,  not  that  the  "limitation"  over  must  take  effect 
within  a  life  in  being,  or  not  at  all,  but  that  the  "contingency" 
on  which  it  is  made  to  depend,  must  happen,  (if  at  all,)  within 
the  compass  of  a  life  or  lives  in  being,  and  21  years  and  a  few 
months  after  wards  j  and  the  distinction  is  a  very  clear  one.  As 


126  CASES  IN  THE  COURT  OP  APPEALS 

NEWTON  t>.   GRIFFITH. — 1827. 

if  there  be  a  limitation  over,  "for  life,  to  one  in  esse,  on  the 
failure  of  issue  of  the  first  devisee,  whenever  that  may  hap- 
pen." There  the  event  on  which  the  limitation  is  made  to  de- 
pend, may  happen  within  a  life  in  being;  or  it  may  not  hap- 
pen within  that  period,  but  many  generations  after;  and  yet  the 
limitation  being  for  life  to  one  in  esse,  must  take  effect,  if  at 
all,  within  a  life  in  being.  But  if  the  limitation  over,  be  on 
a  "dying  without  issue  living  at  the  death  of  the  first  taker,'1 
the  event  in  which  the  limitation  depends,  (the  dying  without 
issue,)  must  happen,  if  at  all,  within  the  prescribed  limits. 
The  former  is  what  is  meant  by  an  "indefinite,"  and  the  latter 
by  "a  definite"  failure  of  issue.  And  the  several  general  ex- 
pressions, "having  no  issue,"  "leaving  no  issue,"  and  "with- 
out issue,"  when  used  in  relation  to  real  estate,  meaning,  ac- 
cording to  the  settled  legal  construction,  an  indefinite  failure  of 
issue,  they  must,  whenever  they  are  found  in  a  will,  be  taken 
in  their  technical  legal  sense,  unless  there  be  something  clearly 
demonstrating  a  different  intention  on  the  part  of  the  testator, 
and  restricting  them  to  a  failure  of  issue  at  the  death  of  the 
first  taker.  And  the  circumstance  in  this  case,  of  the  devise  over 
to  the  three  daughters,  being  general,  without  words  of  limita- 
tion, and  consequently  giving  only  an  estate  for  life  in  the  pre- 
mises, is  not  deemed  sufficient  to  narrow  down  the  legal  im- 
port of  the  words  "leaving  no  lawful  heirs  of  their  bodies," 
and  to  restrict  them  to  mean  a  failure  of  issue  at  the  death  of 
the  surviving  brother;  for  non  constat,  that  the  testator  so  in- 
tended. Under  that  restricted  construction,  if  Joseph,i\\z  sur- 
viving brother,  had  died  leaving  issue,  and  that  issue  had  be- 
come extinct  in  one  hour  after  his  death,  the  daughters  could 
never  have  taken  the  contingency  on  which  the  limitation  to 
them  was  made  to  depend,  that  is,  "the  death  of  the  brother 
without  issue  living  at  the  time  of  his  death,"  not  having  hap- 
pened. And  the  testator  could  have  had  no  conceivable  mo- 
tive for  fixing  the  precise  time  of  his  son's  death,  as  the  epoch, 
at  which  the  limitation  to  his  daughters  should  take  effect.  On 
the  contrary  it  would  seem  to  have  been  the  more  probable 
intention,  that  the  sons,  and  their  posterity,  if  they  should 
have  any,  should  enjoy  the  property;  but  if  they  should  have 
none,  or  having  them,  they  should  become  extinct,  then  that  it 


OF  MARYLAND. 


NEWTON  v.  GRIFFITH. — 1827. 


should  go  to  his  daughters,  (who  were  the  next  objects  of  his 
affection  and  benevolence,)  if  they  should  chance  to  be  alive; 
and  that  it  was  the  "failure  of  issue,"  and  not  "the  mere  time 
of  his  sons  death,"  to  which  the  testator  looked  in  making  the 
provision  for  his  daughters.  That  failure  llmight"  happen 
during  their  lives;  and  in  the  language  of  the  Master  of  the 
Rolls,  in  Barlow  vs.  Softer,  17  Vesey  479,  that  chance  is 
what  was  given  them.  Suppose  this  question  had  been  put  to 
the  testator,  "if  your  sons  should  die  leaving  issue,  and  that  is- 
sae  should  die  in  one  month  afterwards,  how,  in  that  event,  do 
you  intend  your  estate  shall  go  under  your  will?"  Would  not 
the  probable  answer  have  been,  why  to  my  daughters  surely. 
And  yet  that  intention  would  have  been  defeated  by  the  con- 
struction contended  for,  and  the  daughters  never  could  have, 
taken,  if  Joseph  had  died  leaving  i?sue,  although  that  issue  had 
died  in  one  hour  after  his  death.  Whereas,  according  to  the 
legal  construction,  that  intention  would  be  gratified,  by  the 
daughters  outliving  such  issue. 

Yielding  then  to  the  weight  of  authority,  and  construing 
this  will  according  to  Ihe  settled  rules  of  construction,  Joseph 
and  George  Griffith,  as  the  law  stood  before  the  passage  of  the 
act  to  direct  descents,  took  estates  tail  general,  in  the  lands  re- 
spectively devised  to  them,  with  cross  remainders  in  tail  gene- 
ral, remainder  to  Sophia,  Sarah  and  Nancy  Griffith  for  life. 

The  next  question  is,  whether  any,  and  what  part  of  the  lands 
so  devised  is  liable  for  the  debts  of  Joseph  Griffith,  the  young- 
er? which  depends  on  the  construction  of  the  act  to  direct  de- 
scents, (1786,  ch.  45.)  It  is  a  matter  of  some  surprise,  that 
such  a  question  should  at  this  late  day  be  open  to  discussion, 
and  it  is  time  that  that  act  had  received  a  judicial  construction. 

Before  the  passage  of  that  act,  it  is  very  certain  that  estates 
tail  were  not  liable  for  debts  contracted  by  tenants  in  tail;  but 
whether  any  change  in  that  respect  was  effected  by  the  opera- 
tion of  the  act,  is  the  question.  The  act  provides,  that  if  after 
its  commencement,  "any  person  seized  of  an  estate  in  any  lands, 
tenements  or  hereditaments,  in  fee  simple,  or  fee  simple  condi- 
tional, or  of  an  estate  in  fee  tail  to  the  heirs  of  the  body  gene- 
ralty,  (created  and  acquired  after  the  commencement  of  the 
act)  shall  die  intestate  thereof,  such  lands,  tenements  or  heredi 


128       CASES  IN  THE  COURT  OF  APPEALS 

NEWTON  v.  GRIFFITH.— 1827. 

laments,  shall  descend  to  the  kindred  male  and  female  of  such 
person,"  in  the  manner  therein  directed.  First  To  the  child 
or  children,  and  their  descendants,  if  any,  equally,  and  if  no 
child  or  descendant,  then  to  the  kindred  ad  infinitum,  on  the 
part  of  the  father,  in  equal  degree  equally,  and  if  none  such, 
then  to  the  kindred  on  the  part  of  the  mother  in  equal  degree 
equally,  without  end;  and  on  failure  of  kindred  on  the  part  both 
of  father  and  mother,  then  it  is  directed  to  go  to  the  husband 
or  wife,  as  the  case  may  be,  and  to  his  or  her  kindred,  in  the 
same  manner.  Thus  the  course  of  descents  of  estates  tail  gene- 
ral, acquired  after  the  commencement  of  the  act,  is  entirely 
broken,  the  interest  of  the  reversioner  or  remainder-man  de- 
stroyed, and  the  land  made  to  pass  by  descent  from  the  tenant 
in  tail,  precisely  and  in  the  very  same  course  as  if  he  was  a 
tenant  in  fee  simple.  By  the  act  of  17S2,  ch.  23,  the  ancient 
mode  of  docking  estates  tail  by  common  recoveries,  is  abolish- 
ed, and  power  is  given  to  any  person  or  persons,  seized  of  any 
estate  tail,  in  possession,  reversion  or  remainder,  to  grant,  bar- 
gain, sell,  and  convey  the  same,  in  the  same  manner,  and  by 
the  same  form  of  conveyance,  that  a  tenant  in  fee  simple  may. 
Lands  then  which  are  held  in  fee  tail  general,  created  and  ac~ 
quired  since  the  commencement  of  the  act  to  direct  descents, 
may  not  only  descend,  but  also  be  sold  and  conveyed  in  the 
same  manner  as  if  they  were  held  in  fee  simple.  The  idea  has 
indeed  been  entertained,  and  in  a  quarter  entitled  to  the  great- 
est deference,  (Smith  vs.  Smith,  2  Harr.  Bf  Johns.  314,^  that 
the  course  of  descents  of  estates  tail  general,  is  altered  by  the 
act  to  direct  descents,  only  in  this,  that  they  are  made  to  de- 
scend to  all  the  children  of  the  tenants  in  tail,  and  their  respec- 
tive issue,  instead  of  going,  in  the  first  instance,  as  before, 
to  the  eldest  son,  on  the  supposition  that  it  could  not  have 
been  the  intention  of  the  legislature  to  change  the  nature  of 
such  estates  in  violation  of  the  intention  of  those  by  whom  they 
might  be  created,  and  the  rights  of  the  remainder-men;  and 
that  the  provisions  of  the  act  relative  to  the  collateral  relations, 
are  applicable  only  to  estates  in  fee  simple,  and  not  to  estates 
tail  general.  But  it  will  not  surely  be  contended,  that  it  was 
not  a  legitimate  subject  of  legislation,  and  that  the  legislature 
had  no  right  to  prohibit  thereafter  the  creation  of  estates  tail 


OF  MARYLAND.  129 


NEWTON  v.  GRIFFITH. — 1827. 


altogether.  And  if  that  right  be  conceded,  and  conceded  it 
must  be,  it  follows,  that  they  had  a  right  to  direct,  in  what 
manner  lands,  so  held  by  subsequent  creation,  should  descend. 
They  have  provided  a  course  of  descent,  for  lands  held  in  fee 
tail  general,  created  since  the  commencement  of  the  act;  and 
the  inquiry  is,  How  have  they  directed  that  such  lands  shall 
descend?  With  respect  to  the  intention  of  the  legislature,  we 
can  only  judge  of  their  intention,  by  what  they  have  done. 
The  provision  of  the  act  is,  that  if  any  person  seized  of  an 
estate  in  any  lands,  &c.  in  fee  simple,  or  fee  tail  to  the  heirs  of 
the  body  generally,  (created  and  acquired  after  the  commence- 
ment of  the  act,)  shall  die  intestate  thereof,  such  lands,  &c.  shall 
descend,  &c.  What  lands?  Why  lands  of  which  any  person 
shall  die  seized  in  fee  simple,  or  fee  tail  to  the  heirs  of  his  body 
generally;  and  precisely  the  same  course  of  descent  is  directed 
in  relation  to  each.  It  is  admitted,  because  it  cannot  be  denied, 
that  lands  held  in  tail  general  are  made  to  descend  immediate' 
ly  to  all  the  children  of  the  tenant  in  tail,  and  their  respective 
issue,  and  not  to  the  eldest  son  alone  in  the  first  instance.  And 
what  is  there  to  be  found  in  the  act  by  which  the  descent  is 
confined  to  the  issue  of  the  tenant  in  tail,  to  the  exclusion  of 
collaterals?  Nothing  surely  in  the  letter  of  it,  which  is  not 
equally  applicable  to  lands  held  in  tail  general,  as  in  fee  simple. 
To  bring  in  with  the  eldest  son  all  the  children  of  the  tenant 
in  tail,  equally,  is  as  contrary  to  the  nature  of  an  estate  tail, 
and  as  much  a  violation  of  the  intention  of  the  maker,  and  the 
rights  of  the  eldest  son,  as  the  letting  in  collaterals  is  a  viola- 
tion of  the  rights  of  the  remainder-man.  And  if  the  legisla- 
ture intended  to  do  the  former,  what  is  there  to  show  that  it 
was  not  ther  intention  to  do  the  latter?  Nothing  in  the  law  it- 
self. And  if  we  travel  out  of  it  in  search  of  evidence  that 
such  was  not  their  intention,  there  will  be  found  quite  as  much 
difficulty  in  discovering  it.  The  truth  is,  that  restrictions  upon 
the  descent  and  alienation  of  lands  in  this  state  were  contrary 
to  general  policy,  and  the  provisions  of  the  act  to  direct  de- 
scents grew  out  of  a  disposition  to  remove  them.  In  that  spirir 
the  act  to  direct  descents  was  passed;  and  by  it  all  lands  held 
in  fee  simple  and  fee  tail  general,  are  directed  to  descend  in  one 
general  uniform  manner,  (without  any  distinction  bein^ 

VOL.    1  17 


130       CASES  IN  THE  COURT  OF  APPEALS 

NEWTON  v.  GRIFFITH. — 1827. 

between  the  two  kinds  of  estates,)  first  to  the  child  or  children, 
and  their  descendants,  if  any,  equally,  and  if  no  child  or  de- 
scendants, &c.  then  to  collaterals  indefinitely.  And  if  the  pro- 
vision for  the  descent  to  the  child  or  children,  and  their  descen- 
dants, applies  to  both,  then  the  provision  for  the  descent  to  col- 
laterals necessarily  applies  also  to  both.  The  sixth  section, 
excepting  from  the  operation  of  the  act  all  estates  tail  created 
before  its  commencement,  and  all  estates  tail  special,  created 
subsequent  to  its  commencement,  and  leaving  estates  general, 
executed  subsequent  to  its  commencement,  out  of  the  exception, 
proves  that  to  be  the  correct  construction.  A  different  con- 
struction would  be  repugnant  to  the  general  spirit  and  other 
provisions  of  the  act.  When  lands  come  to  be  divided  accord- 
ing to  the  provisions  of  the  act,  between  the  children  of  a  de- 
ceased tenant  in  tail  general,  what  but  an  estate  in  fee  can  the 
children  respectively  take?  Or  if  found  to  be  not  capable  of 
division,  and  one  elects  to  take  the  whole,  paying  to  the  others 
their  respective  proportions  of  the  valuation,  what  but  an  estate 
in  fee  can  the  child  so  electing  take?  Or  if  they  cannot  be  di- 
vided, and  neither  of  the  persons  entitled  will  elect  to  take, 
and  they  are  sold  under  the  direction  of  the  commissioners, 
what  but  an  estate  in  fee  can  the  purchaser  in  such  case  take? 
It  is  also  worthy  of  notice,  that  the  act  of  descents  does  not 
direct  that  the  estates  tail  shall  descend,  but  that  the  lands, 
&c.  shall  descend  in  the  manner  prescribed. 

Upon  the  whole,  it  is  clear  that  all  lands  held  in  this  state 
in  tail  general,  created  since  the  commencement  of  that  act, 
have  all  the  descendible  properties  of  lands  held  in  fee  simple; 
and  having  both  the  transferable  and  descendible  properties  of 
fee  simple  estates,  being  liable  to  disposition  by  a  common  deed 
of  bargain  and  sale,  it  would  seem  to  follow  that  they  are  de- 
viseable  also.  The  general  rule  is,  that  what  is  transferable  is 
consequently  deviseable,  which  holds  more  strongly  when  de- 
scendible likewise.  The  legislature,  when  giving  to  lands  held 
in  tail  general  the  descendible  quality  of  estates  in  fee,  treats 
them  as  lands  capable  of  being  devised.  The  language  of  the 
act  is,  if  any  person  seized  of  an  estate  in  any  lands,  &c.  in 
fee  simple,  or  fee  tail,  to  the  heirs  of  the  body  generally,  shall 
die  intestate  thereof,  &c.  Now  as  a  man  cannot  be  said  to 


OP  MARYLAND.  131 


NEWTOW  v.  GRIFFITH. — 1827. 


die  intestate  of  that  which  is  not  deviseable,  the  legislature 
must  be  understood  as  meaning,  that  the  estates  tail  there  treated 
of,  should  by  the  operation  of  that  act  be  deviseable;  in  other 
words,  that  such  estates  should  become  estates  in  fee  simple, 
otherwise  they  could  not  be  deviseable.  If  that  is  not  what  is 
meant,  they  were  guilty  of  the  absurdity  of  saying,  that  if  a 
tenant  in  tail  did  not  do,  what  by  law  he  was  incapable  of  doing, 
the  land  should  descend,  &c  to  his  heirs  generally.  If  he  did 
not  devise  away  an  estate,  which,  if  an  estate  tail  he  could  not 
devise,  it  should,  therefore,  on  his  death,  cease  to  be  an  estate 
tail,  and  become  a  fee  simple,  and  as  such  descend  to  his  heirs 
generally.  The  obvious  understanding  and  intention  of  the 
legislature,  in  using  the  words  "shall  die  intestate  thereof,"  &c. 
was,  that  any  person  seized  of  an  estate  in  tail  general,  created 
after  the  commencement  of  the  act,  might  make  a  disposition 
by  will  of  land  so  held,  as  it  is  not  to  be  imagined  that  they 
were  wholly  ignorant  of  the  import  of  the  terms  used,  and 
supposed,  that  a  dying  by  a  tenant  in  tail,  without  leaving  a 
will  containing  a  provision  for  the  disposition  of  the  land  held 
in  tail,  would  be  an  intestacy  as  to  such  land,  when  by  law,  he 
was  incompetent  to  dispose  of  it  by  will.  As  well  may  he  be 
said  to  die  intestate  of  the  estate  of  another,  who  leaves  no  will 
respecting  it.  But  if  such  was  the  understanding  of  the  legis- 
lature, then  it  would  follow,  that  they  intended,  that  lands  held 
in  tail  general,  should  descend  in  the  manner  directed  by  the 
first  section  of  the  act,  in  the  event  only  of  the  tenant  in  tail 
omitting  to  do  a  perfectly  nugatory  act — the  making  a  will, 
which  if  made  would  be  altogether  inoperative  to  pass  the  estate, 
and  could  in  no  manner  affect  the  interest  of  the  heir  in  tail, 
the  remainder-man  or  the  reversioner,  more  than  if  no  will 
was  made.  Which  would  amount  to  this,  that  if  a  tenant  in 
tail  general,  should  make  no  effort  by  will  to  dispose  of  the 
estate,  the  land  should  descend  immediately  on  his  death  to  all 
his  children  equally;  but  that  if  he  should  make  an  unavailable 
effort  to  dispose  of  it,  by  leaving  a  perfectly  inoperative  will, 
then  it  should  not  so  descend,  but  should  go  as  formerly  to  the 
heir  in  tail.  And  what  imaginable  reason  could  there  have 
been  for  that?  What  sense  would  there  be  in  it?  Why  should 
such  an  effect  be  given  to  a  paper  purporting  to  be  a  will,  but 


132  CASES  IN  THE  COURT  OF  APPEALS 

NEWTOK  v.   GRIFFITH. — 1827. 

having  in  law  no  operation  at  all,  and  amounting  at  most  to  no 
more  than  a  mere  ineffectual  manifestation  of  a  wish  on  the 
part  of  the  tenant  in  tail  to  dispose  of  the  land  by  will;  but 
making  in  fact  no  disposition  of  it,  and  leaving  it  in  the  same 
condition  as  if  he  had  died  without  executing  such  an  instru- 
ment. But  that  is  not  what  was  meant;  and  the  clear  under- 
standing of  the  legislature  was,  not  a  dying,  without  going 
through  the  mere  form  of  executing  an  ineffectual  instrument, 
but  a  dying  without  making  a  valid  and  operative  disposition  of 
the  land  by  will.  Thus  considering  and  treating  it  as  liable  to  be 
disposed  of  in  that  manner,  and  making  no  distinction  between 
lands  so  held,  and  lands  originally  held  in  fee  simple.  But  inde- 
pendent of  that  circumstance  all  estates  are  known  by  their  pro- 
perties, as  the  tree  by  its  fruit;  and  that  which  has  the  properties 
of  a  fee  simple,  is  a  fee  simple,  and  subject  to  all  the  incidents  to 
such  an  estate;  and  lands  held  in  tail  general,  created  since  the 
commencement  of  the  act  to  direct  descents,  being  made  by  that 
act  to  descend  precisely  in  the  same  manner  as  lands  held  in 
fee  simple,  all  such  estates  are  thereby  virtually  abolished,  and 
converted  into  estates  in  fee  simple,  drawing  to  such  lands  all 
the  incidents  to  lands  held  in  fee,  among  which  is  that  of  being 
liable  for  the  debts  of  those  who  before  that  act  would  have 
been  tenants  in  tail.  Can  it  be  doubted,  that  if  a  man  so  seized, 
should  make  a  contract  for  the  sale  of  the  land,  and  receive  the 
purchase  money,  that  chancery  would  enforce  that  contract  a- 
gainst  his  heirs  to  whom  the  lands  would  descend?  And  if  so, 
on  what  principle  can  they  be  considered  not  liable  for  his 
debts?  There  can  be  no  conceivable  reason  why  a  remainder- 
man, more  than  a  reversioner,  should  be  respected  and  protect- 
ed, the  interest  is  the  same,  and  neither  in  fact  is  protected; 
and  it  would  be  strange  if  he  who  creates  an  estate  in  the  form 
of  an  estate  tail,  and  cannot  protect  his  reversionary  interest  in 
himself,  could  be  able  to  protect  it,  by  giving  it  in  the  shape  of 
a  remainder  to  another.  And  the  legislature  cannot  be  sup- 
posed to  have  intended  to  make  such  estates  descendible  as  fee 
simples,  only  for  the  purpose  of  defeating  the  interest  of  the 
heirs  in  tail,  the  reversioners  and  remainder-men,  in  favour  of 
collaterals  ad  infinitum,  and  in  the  event  of  there  being  none, 
of  husbands  and  wives,  and  their  heirs,  indefinitely,  and  yet 


OF  MARYLAND.  133 


NEWTOW  v.   GBIFFITH. — 1827. 


to  give  to  such  lands  none  of  the  other  incidents  of  estates  in 
fee,  but  leave  the  creditors  without  remedy  or  protection.  That 
was  not  the  intention  of  the  legislature,  but  making  them  to 
descend  as  lands  held  in  fee  they  meant  that  they  should  so  de- 
scend, subject  to  all  the  incidents  of  estates  in  iee  simple;  and 
that  the  heirs,  who  should  take  them,  whether  lineal  or  colla- 
teral, should  take  them  cum  onere. 

In  this  view  of  the  subject,  Joseph  Griffith,  the  younger, 
and  George  Griffith,  by  operation  of  the  act  of  descents,  took 
virtually  estates  in  fee,  in  the  lands  devised  to  them  respective- 
ly; and  on  the  death  of  George,  Joseph  and  his  three  sisters 
surviving  him,  Joseph  took  by  descent  from  him  one-fourth 
of  his  estate,  which,  with  the  whole  of  the  lands  devised  to  him 
by  his  father,  descended  on  his  death  to  his  three  sisters  as  his 
heirs  at  law,  subject  to  be  sold  for  the  payment  ol  his  debts. 
As  to  so  much,  therefore,  of  the  lands  devised  by  Joseph  Grif- 
fith, the  elder,  to  his  sons  Joseph  and  George,  respectively,  the 
decree  of  the  court  below  is  reversed. 

STEPHEN,  J.  dissenting,  delivered  the  following  opinion. 
The  question  to  be  decided  in  this  case  arises  from  sundry  de- 
vises contained  in  the  will  of  Joseph  Griffith,  who  in  his  life- 
time being  seized  in  fee  of  sundry  lands  and  tenements  lying 
in  Dorchester  county,  on  or  about  the  6th  of  February  1792, 
made  and  published  his  last  will  and  testament  according  to 
law,  and  therein,  among  other  dispositions  of  his  estate,  devised 
his  said  lands  to  his  two  only  sons,  Joseph  and  George  Grif- 
fith, and  his  three  only  daughters,  Sophia,  Sarah  and  Nancy 
Griffith,  as  follows,  to  wit:  "I  give  and  devise  unto  my  SOB 
Joseph  Griffith  my  present  dwelling  plantation  whereon  I  now 
live,  to  him  my  said  son  Joseph,  his  heirs  and  assigns  forever. 
Item.  I  give  and  devise  unto  my  son  George  Griffith  the  plan- 
tation whereon  Levi  Oram  now  lives,  lying  on  Transquakin 
river,  or  a  branch  thereof,  to  him,  my  said  son  George,  his 
heirs  and  assigns,  forever;  and  my  will  is,  that  all  the  land 
which  I  am  now  possessed  of,  either  by  deed,  bond  or  patent, 
he  equally  divided  between  my  said  two  sons  Joseph  and 
George,  according  to  quantity  and  quality,  share  and  share 
alike,  to  them  their  heirs  and  assigns  forever;  and  in  case  ei- 


134        CASES  IN  THE  COURT  OF  APPEALS 

NEWTON  v.  GRIFFITH. — 1827. 

ther  of  my  said  sons  should  decease,  having  no  lawful  issue,  or 
heirs  of  his  body,  that  then  the  surviving  son  to  have  his  de- 
ceased brother's  part  or  moiety  of  the  land  aforesaid,  to  him, 
his  heirs  and  assigns  forever,  as  aforesaid;  and  in  case  both  my 
said  sons  Joseph  and  George,  should  decease,  leaving  no  lawful 
heirs  of  their  bodies,  that  then  and  in  such  case,  I  give  and  de- 
vise all  my  aforesaid  lands,  devised  as  aforesaid,  unto  my  three 
daughters,  Sophia,  Sarah  and  Nancy  Griffith,  to  be  equally 
divided  between  my  aforesaid  three  daughters."  George  Grif- 
fith, after  the  death  of  his  father,  departed  this  life  intestate, 
and  without  issue,  never  having  had  any  issue,  leaving  his  bro- 
ther and  sisters  surviving  him.  Joseph  Griffith  also  departed 
this  life  intestate,  and  without  issue,  never  having  had  any  issue, 
leaving  his  sisters  surviving  him,  all  of  whom  are  married  and 
in  possession  of  the  premises.  Joseph  Griffith,  the  son,  died 
indebted  to  sundry  persons,  and  did  not  leave  personal  estate 
sufficient  to  pay  his  debts.  His  creditors  filed  a  bill  on  the 
equity  side  of  Dorchester  county  court  against  the  daughters, 
and  their  husbands,  for  the  purpose  of  obtaining  a  decree  for 
the  sale  of  the  said  lands,  to  pay  their  debts.  A  decree  passed 
pro  forma  in  favour  of  the  respondents,  from  which  the  com- 
plainants appealed  to  this  court.  The  questions  to  be  decided 
by  this  couvt  are  first,  What  estates  the  sons  took  under  the 
will  of  their  father?  And  secondly,  Did  they  derive  under  that 
will  such  an  interest  in  the  lands  devised  to  them,  as  will  sub- 
ject those  lands,  under  the  circumstances  of  this  case,  to  the 
payment  of  Joseph's  debts?  It  is  a  well  settled  rule  in  the  ex- 
position of  wills,  that  the  intention  of  the  testator,  to  be  col- 
lected from  the  whole  will,  shall  prevail  unless  it  conflicts  with 
some  established  principle  of  law;  and  as  Lord  Kenyon  said 
in  the  case  of  Wilkinson  vs.  South,  7  T.  R.  553,  the  only 
question  is,  whether  on  the  fair  construction  of  the  words  of 
this  will,  the  testator  meant  that  the  limitation  over  to  the  sur-* 
viving  son  should  only  take  effect  after  an  indefinite  failure  of 
issue  of  the  first  taker,  or  on  a  failure  of  issue  living  at  the 
time  of  his  death?  For,  he  observes,  as  soon  as  that  intention 
is  discovered,  there  is  an  end  of  the  case.  So  in  the  case  of 
Roe  vs.  Jejfery,  Ibid  591,  his  Lordship  says,  speaking  on  the 
subject  of  executory  devises,  "We  had  occasion  a  few  days  ago 


OF  MARYLAND. 


NEWTON  v.  GRIFFITH. — 1827. 


to  advert  to  this  doctrine,  when  we  said  that  this  is  a  question 
of  construction,  depending  on  the  intention  of  the  party;  and 
nothing  can  be  clearer  in  point  of  law,  than  that  if  an  estate 
be  given  to  A  in  fee,  and  by  way  of  executory  devise  an  estate 
be  given  over  which  may  take  place,  within  a  life  or  lives  in 
being,  and  twenty-one  years  and  the  fraction  of  &  year  after- 
wards, the  latter  is  good  by  way  of  an  executory  devise.  The 
question  therefore  in  this  and  similar  cases  is,  whether  from  the 
whole  context  of  the  will  we  can  collect,  that  when  an  estate 
is  given  to  A  and  his  heirs  forever,  but  if  he  die  without  issue 
then  over,  the  testator  meant  dying  without  issue  living  at  the 
death  of  the  first  taker?"  If  the  latter  was  intended  in  the 
case  now  before  this  court,  the  limitation  over  is  within  the  legal 
limits,  and  good  and  available  as  an  executory  devise  according 
to  the  law  as  settled  in  the  above  case.  And  it  is  further  to  be 
remarked  that  where  it  is  the  apparent  intention  of  the  testator 
to  give  a  fee  in  the  first  instance,  and  there  is  then  a  limitation 
over  on  a  failure  of  issue,  to  carry  the  intention  of  the  testator 
into  effect,  the  court  will  lay  hold  of  the  smallest  circumstance 
to  confine  the  failure  of  issue  to  the  death  of  the  first  taker,  so 
as  to  make  the  limitation  over  good  as  an  executory  devise.  In 
the  case  last  referred  to,  the  devise  was  to  T.  F.  and  his  heirs 
forever,  and  in  case  he  should  depart  this  life,  and  leave  no  is- 
sue, then  to  E,  M  and  S,  or  the  survivor  or  survivors  of  them, 
share  and  share  alike;  it  was  held  that  the  devise  to  E,  M  and 
S,  was  a  good  executory  devise.  The  reason  upon  which  this 
decision  was  grounded,  is  strongly  nay  irresistibly  decisive  ot 
the  case  now  pending  before  this  court.  It  was,  that  the  per- 
sons to  whom  the  property  was  limited  over,  were  then  in  ex- 
istence, and  life-estates  only  were  given  to  them.  So  here  the 
daughters  of  the  testator,  Joseph  Griffith,  were  in  existence  at 
the  time  he  made  his  will,  and  life-estates  only  were  given  to 
them;  and  this  fact  strongly  indicates  the  intention  of  the  testa- 
tor to  confine  the  failure  of  issue  to  the  death  of  his  two  sons; 
because  the  limitation  over  to  the  daughters  was  only  to  take 
effect  on  the  death  of  both  without  leaving  issue.  The  case  of 
Fosdick  vs.  Cornell,  1  Johns.  Rep.  440,  is  in  principle  strongly 
analagous  to  the  present.  The  first  devises  were  in  fee,  and 
the  will  provided  that  if  any  of  the  devisees  should  happen  to 


136  CASES  IN  THE  COURT  OF  APPEALS 

NEWTOW  v.   GRIFFITH. — 1827. 

die  without  heirs  male  of  their  own  bodies,  that  then  the  lands 
should  return  to  the  survivors,  to  be  equally  divided  between 
them.  Judge  Thompson,  in  delivering  the  opinion  of  thu 
court,  remarks,  ''This  is  a  question  of  construction,  depending 
on  the  intention  of  the  testator;  and  from  the  whole  will  taken 
together,  I  cannot  entertain  a  doubt  that  he  meant  to  provide, 
that  in  case  any  of  the  devisees,  named  in  the  clause,  should 
die  without  leaving  male  issue  at  the  time  of  his  death,  his  por- 
tion should  be  divided  among  the  survivors."  The  limitatiou 
over  being  to  the  survivors,  seems  to  have  had  considerable 
weight  in  bringing  him  to  the  conclusion,  that  it  was  good  by 
way  of  executory  devise,  it  restraining  the  failure  of  issue  to 
the  time  of  the  death  of  the  first  taker.  The  case  of  Jackson 
vs.  Blanshaw,  3  Johns.  Hep.  292,  is  strongly  analagous  to  the 
case  now  before  this  court,  or  more,  properly  speaking,  is  a 
case  in  point,  and  decides  the  question  which  now  awaits  the 
determination  of  this  tribunal.  After  giving  some  legacies, 
the  testator  devised  to  his  six  children  their  heirs  and  assigns 
forever,  all  the  remainder  of  his  real  and  personal  estate,  to  be 
equally  divided  among  them;  but  if  any  one  of  his  children 
should  die  before  full  age,  or  without  lawful  issue,  then  his  or 
her  part  to  devolve  upon,  and  be  equally  divided  among  the 
rest  of  his  surviving  children,  to  their  heirs  and  assigns  for- 
ever. In  that  case  Spencer,  Justice,  in  delivering  his  opinion, 
says,  "The  grandchildren  cannot  be  considered  as  the  surviv- 
ing children  within  the  intention  of  the  testator."  So  in  this 
case,  the  surviving  son  cannot  be  considered  as  the  surviving 
grandson  within  Ihe  intention  of  the  testator;  and  if  not,  then 
the  limitation  over  to  the  surviving  son,though  in  fee,  is  clearly 
good  as  an  executory  devise,  and  within  the  legal  limits  which 
the  law  indulges  to  a  man's  last  will  and  testament  in  such 
cases.  If  then  the  devise  over  to  the  surviving  son  was  good  as 
an  executory  devise,  Joseph,  the  son,  did  not  take  an  estate 
tail,  but  took  a  defeasible  fee,  in  the  part  devised  to  him  by  the 
will,  and  on  the  death  of  George  without  issue  took  the  same 
estate  in  the  part  devised  to  George;  and  on  Joseph's  death 
without  issue,  the  whole  estate  went  over  to  the  surviving 
daughters  by  way  of  executory  devise  for  life.  IVooddisson, 
in  his  lectures  on  executory  devises,  225,  says,  there  are  t\vo 


OF  MARYLAND.  137 


NKWTON  v.   GRIFFITH. — 1827. 


sorts  of  executory  devises,  one  where  the  fee-simple  passes, 
another  where  the  fee  does  not  pass,  but  in  the  interim  descends 
to  the  heirs.  The  example  of  the  first  sort  which  he  gives  is, 
where  a  testator  devised  to  A,  and  his  heirs  forever,  and  if  he 
died  without  issue  living  B,  then  B  to  have  those  lands,  to  him 
and  his  heirs  forever;  and,  he  says,  it  was  adjudged  that  A 
took  a  vested  fee  simple.  In  this  case,  then,  on  the  death  of 
George^  without  issue,  the  whole  fee  simple  in  the  lands  de- 
vised vested  in  Joseph:  and  it  was  only  on  his  death  without 
issue  that  his  right  to  the  whole  lee  ceased;  on  that  event  the 
testator  devised  the  lands  to  his  daughters  for  life,  leaving  the 
fee  undisposed  of;  but  the  daughters  being  then  his  heirs  at 
law,  the  fee  descended  to  them,  and  the  life  estates  became 
merged  in  it.  For  it  was  only  on  the  death  of  Joseph,  with- 
out issue,  that  there  was  any  interest  or  estate  to  vest  in  the 
heirs  of  the  testator,  the  whole  fee  simple  being  in  him  during 
his  life.  According  to  this  view  of  the  subject  the  decree  of  Dor- 
chester county  court  ought  to  be  affirmed.  No  estate  tail  being 
given  to  Joseph  Griffith  by  the  will  of  his  father;  it  is  unne- 
cessary to  decide  whether,  if  he  had  taken  such  an  estate,  it 
would  have  been  liable,  on  his  death,  to  the  payment  of  his 
debts,  under  our  act  of  assembly  regulating  the  law  of  descents. 
The  question  is  a  highly  important  and  novel  one.  In  Davis 
vs.  Jacquin  fy  Pomerait,  5  Harr.  4*  Johns.  109,  this  court  in 
construing  the  law  giving  to  females  a  right  to  possess  their 
property  at  the  age  of  sixteen,  express  themselves  in  the  fol- 
lowing manner:  "That  this  act  (1798,  ch.  101,)  has  not  in 
terms  declared,  that  the  infancy  of  females  shall  cease  at  the 
age  of  sixteen,  will  be  admitted;  and  it  is  difficult  to  conceive 
why  the  legislature,  if  they  intended  to  destroy  this  important 
feature  of  the  common  law,  did  not  pointedly  declare  their  in- 
tention, instead  of  leaving  it  to  be  inferred  by  reasoning."  So 
here  no  part  of  the  act  of  descents  declares  in  terms,  that  an 
estate  tail  shall  on  the  death  of  tenant  in  tail  be  liable  for  the 
payment  of  his  debts,  but  only  declares  that  it  shall  be  descen- 
dible as  a  fee  simple.  If  it  had  been  the  intention  of  the  le- 
gislature to  make  so  important  a  change  in  the  law  relative  to 
estates  tail,  it  is  to  be  presumed  they  would  have  declared  such 
intention  in  express  terms,  and  not  leave  it  to  be  collected 
VOL.  i.  15 


138       CASES  IN  THE  COURT  OF  APPEALS 

NEWTOW  v.  GRIFFITH. — 1827. 

from  argumentative  inference  or  deduction.  It  has  moreover 
teen,  it  is  believed,  the  universal  understanding,  that  estates 
tail  were  not  liable  for  the  debts  of  tenant  in  tail;  and  the 
practice  has  been  to  dock  such  estates  in  the  manner  prescribed 
by  the  act  of  1782,  ch.  23,  as  well  since  and  before  the  act  of 
descents.  This  last  mentioned  act  speaks  of  the  tenant  dying 
seized  of  an  estate  tail,  intestate  thereof;  recognising  the  con- 
tinuance of  the  entail  to  the  time  of  the  tenant's  death,  and 
giving  it  only  the  properties  of  an  estate  in  fee,  as  to  the  course 
and  manner  of  its  descent  after  his  death.  In  1  Bacon's 
Jlbridgment,  703,  the  law  is  stated  to  be,  that  the  estates  of 
copyholders  shall  descend  to  their  heirs,  and  such  descent  shall 
be  governed  by  the  rules  of  the  common  law,  but  not  to  have 
all  the  collateral  qualities  of  estates  in  fee  simple;  for  it  is  not 
assets  in  the  heirs  hands;  so  that  the  circumstance  of  the  lands 
being  made  descendible  to  the  heirs  general,  in  the  same  man- 
ner as  fee  simple  estates,  is  not,  it  seems,  sufficient  per  se  to 
make  them  liable  in  the  hands  of  the  heirs  for  the  debts  of  the 
ancestor.  But  that  lands  held  in  fee  tail  general,  have  not  all 
the  qualities  and  attributes  of  estates  in  fee  simple,  it  is  only 
necessary  to  refer  to  the  act  of  1798,  ch.  101.  That  act  de- 
clares that  all  lands  which  might  pass  by  deed,  or  which  would 
in  case  of  intestacy,  descend  to  or  devolve  on  "his  or  her  heirs, 
or  other  representatives,"  except  estates  tail,  may  be  disposed 
of  by  last  will  and  testament.  The  Supreme  Court  of  the 
United  States,  in  Stuart  vs.  Laird,  I  Cranch,  309,  in  speak- 
ing of  the  effect  of  a  practice  under  a  law,  say,  that  practice 
and  acquiescence  under  it  for  a  period  of  several  years,  fixes 
the  construction.  It  is  a  contemporary  interpretation  of  the 
most  forcible  nature.  Such  a  practical  exposition  is  too  strong 
and  obstinate  to  be  shaken  or  controled.  That  such  a  con- 
struction puts  the  question  at  rest,  and  that  it  ought  not  to  be 
disturbed.  So  here  the  lon$  understanding  and  practice  under 
the  act  of  descents,  put*  the  question  at  rest,  and  it  ought  not 
DOW  to  be  disturbed.  I  am  of  opinion  that  the  decree  ought 
to  be  affirmed. 

DECREE-  REVERSED,   (a.) 

(a}  The  doctrine  that  "if  there  be  a  devise  to  one  generally  of  free- 
bold,  without  any  words  of  Ikaitatlon,  be  will  take  an  estate  for  life  only 


OF  MARYLAND, 


HIGIJOS  v.  THOMAS.— 1827. 


in  the  freehold,''  is  changed  in  this  state  by  the  act  of  1825,  ch.  119,  by 
which  it  is  enacted,  that  after  the  1st  of  April  1825,  devises  of  land  or  real 
property,  without  words  of  perpetuity  or  limitation,  shall  pass  the  entire 
estate  of  the  testator  in  such  property,  unless  it  shall  appear  by  devise  over, 
or  by  words  of  limitation,  or  otherwise,  that  the  testator  intended  to  de- 
vise a  less  estate. 


HIGDON  et  u%.  vs.  THOMAS. — June,  1827. 

A  liberal  construction  is  to  be  given  to  the  Statute  of  Frauds.  29  Car.  II, 
eh.  3.  In  relation  to  the  fourth  section  thereof,  it  is  settled,  that  if  the 
name  of  a  party  appears  in  the  memorandum  of  a  contract,  and  isapplica- 
ble  to  the  whole  substance  of  the  writing,  and  is  put  there  by  him  or  his 
authority,  it  is  immaterial  in  what  part  of  the  instrument  the  name  ap- 
pears, whether  at  the  top,  in  the  middle,  or  at  the  bottom.  Forms  are 
not  regarded,  and  the  Statute  is  satisfied,  if  the  terms  of  the  contract  are 
in  writing,  and  the  names  of  the  contracting  parties  appear. 

So  a  bond,  which  recited  the  names  of  the  parties  to,  and  the  terms  of  a 
contract  for  the  sale  of  land,  and  contained  a  condition  to  secure  a  per- 
formance of  such  contract,  prepared  and  written  by  the  vendee,  who  was 
also  the  obligee  of  the  bond,  executed  by  an  agent  of  the  vendor,  and 
delivered  by  him  to  the  vendee,  is  a  sufficient  signing  within  the  fourth 
section  of  the  Statute  of  Frauds. 

A  technical  authentication  by  signature  is  not  necessary. 

The  phraseology  of  ihe  fourth  and  fifth  sections  of  that  statute,  as  respects 
signing,  is  equally  imperative,  and  substantially  the  same. 

A  receipt  for  the  purchase  money,  in  a  deed  for  the  conveyance  of  land,  is 
only  prima  facie  evidence  of  its  payment. 

Where  an  agreement  does  not  designate  the  person  to  whom  its  considera- 
tion is  to  be  paid,  the  law  will  raise  an  assumpsit,  and  this  is  always  im- 
plied in  favour  of  those  who  are  the  meritorious  cause  of  action,  or  from 
whom  the  consideration  moves. 

The  consideration  being  the  sale  of  the  wife's  inheritance,  in  the  absence 
of  an  express  promise  the  law  will  raise  one  to  the  husband  and  wife,  on 
which  the  husband  may  sue  either  in  his  own  name,  or  in  the  names  of 
himself  and  wife,  and  in  such  case,  even  if  there  was  an  express  promise 
to  the  husband,  the  wife  might  be  joined  as  plaintiff. 

But  a  feme  covert  cannot  be  joined  in  an  action  to  recover  the  price  of  pro- 
perty sold  by  her,  and  which  belonged  to  her  before  coverture,  or  the 
value  of  services  by  her  personally  rendered,  unless  there  be  an  express 
promise  of  payment  to  her.  This  distinction  arises  from  rights  which 
pass  to  the  husband  absolutely,  and  those  which  survive  to  the  wife,  and. 
over  which  he  has  no  power  of  transfer  but  by  the  consent  and  co-opera- 
tion of  the  wife. 

APPEAL  from  Frederick  County  Court.  This  was  an  actioa 
of  assumpsit  brought  in  the  names  of  the  appellants,  (the  plain- 
tiffs in  the  court  below,)  against  the,  appellee,  (the,  deiemlaat  ift 


140  CASES  IN  THE  COURT  OF  APPEALS 

HIGDON  v    THOMAS. — 1827. 

that  court.)  The  declaration  counted  upon  the  contract  recited 
in  the  bond,  a  copy  of  which  will  be  found  in  the  bill  of  ex- 
ceptions; and  also  averred  that  the  defendant  was  put  into  the 
possession  of  the  land  sold  to  him  on  the  day  of  making  such 
contract,  and  afterwards  accepted  from  the  plaintiffs  a  sufficient 
deed  conveying  the  fee  simple  of  the  said  land  to  him.  It  then 
assigned  as  a  breach,  the  nonpayment  of  the  four  last  instal- 
ments mentioned  in  the  contract,  and  concluded  to  the  damage 
of  the  plaintiffs,  &c.  The  defendant  pleaded  non  assumpsit, 
and  issue  was  joined. 

At  the  trial  the  plaintiffs  gave  in  evidence  the  following  in- 
strument of  writing,  to  wit:  "Know  all  men  by  these  presents, 
that  I,  John  S.  Frazier,  of  Frederick  county,  and  state  of  Ma- 
ryland, farmer,  am  held  and  firmly  bound  unto  Samuel  £ 
Thomas,  of  the  same  place,  in  the  just  and  full  sum  of  eight 
thousand  dollars  current  money  of  Maryland,  to  be  paid  to 
him  the  said  Samuel  S.  Thomas,  his  executors,  administrators 
or  assigns;  to  the  which  payment,  well  and  truly  to  be  made,  I 
bind  myself,  my  heirs,  executors,  administrators  and  assigns, 
in  and  for  the  whole,  firmly  by  these  presents.  Sealed  with 
my  seal,  and  dated  this  tenth  day  of  February  eighteen  hundred 
and  thirteen.  Whereas  the  said  John  S.  Frazier  hath  been 
authorised  by  Thomas  Higdon,  of  Nelson  county,  in  the  state 
of  Kentucky,  to  contract  with  persons  for  the  sale  of  his  lands 
lying  in  Frederick  county  aforesaid,  which  he  the  said  Higdon 
holds  by  virtue  of  his  intermarriage  with  Jlrtemesia,  daughter 
and  devisee  of  Sarah  Briscoe.  And  whereas  the  said  John  S. 
Frazier,  in  pursuance  of  his  said  authority,  contracted  with 
the  said  Samuel  S.  Thomas  for  the  sale  of  all  the  said  Thomas 
Higdon  and  tftrtemesia,  his  wife's  right,  title,  property,  claim 
and  interest  whatsoever,  legal  and  equitable,  to  all  the  land 
situate,  lying  and  being,  in  Frederick  county  aforesaid,  which 
they  hold  under  the  last  will  and  testament  of  Sarah  Briscoet 
deceased,  except  so  much  thereof  as  lies  in  and  near  Liberty- 
Town,  for  which  the  said  Samuel  S.  Thomas  is  to  pay  the 
sum  of  four  thousand  dollars  current  money,  in  the  following 
manner;  that  is  to  say,  one  thousand  dollars  on  the  execution  of 
this  instrument  of  writing,  one  thousand  in  July  next,  and  five 
hundred  dollars  annually  thereafter,  until  the  said  four  thousand 


OF   MARYLAND.  141 


HIGDOX  v.  THOMAS — 1827- 


dollars  be  fully  paid.  The  said  John  S  Frazier  is  to  procure 
from  the  said  Thomas  Higdon,  and  h.s  wife,  deed  for  the  a- 
bove  described  lands,  except  as  before  excepted,  investing  him 
the  said  Samuel  S.  Thomas,  his  heirs,  executors  or  assigns, 
with  a  good  title  in  fee  simple  for  the  same,  and  is  to  have  pos- 
session now;  all  suits  that  are  now  or  may  be  hereafter  brought, 
which  may  affect  the  title  or  possession  of  said  land,  and  the 
necessary  costs  thence  accruing,  is  to  be  paid  out  ot  the  latter 
payments.  Now,  the  condition  of  the  above  obligation  is  such, 
that  if  the  above  mentioned  Thomas  Higdon  and  Jlrtemesia 
his  wife,  do  and  shall  well  and  truly,  by  a  good  and  sufficient 
deed,  agreeable  to  the  terms  and  agreement  aforementioned, 
convey  to  the  said  Samuel  S.  Thomas,  his  heirs,  executors 
and  administrators,  all  the  lands  above  described,  except  as  be- 
fore excepted,  on  or  before  the  twentieth  day  of  September 
next,  then  the  above  obligation  to  be  void,  otherwise  of  full 
force  and  virtue.  John  S.  Frazier,  Att'y  (Seal.) 

Signed,  sealed  and  delivered,  in  presence  of  Wesly  Philips, 
Ignatius  M« Jit tee. 

Received  this  10th  day  of  February,  1S13,  of  Samuel  S. 
Thomas,  the  sum  of  one  thousand  dollars,  current  money,  in 
part  payment  of  the  above  contract. 

Pr.  me  John  S.  Frazier,  Att." 

The  plaintiffs  also  gave  in  evidence,  that  the  said  instrument 
was  prepared  and  written  by  the  defendant,  and  by  him  brought 
to  John  S.  Frazier,  for  the  purpose  of  procuring  his  John  S. 
Frazier's  signature  to  the  same;  that  John  S.  Frazier  Aid,  in 
the  presence  of  the  defendant,  sign,  seal  and  deliver,  the  said 
instrument  of  writing,  to  the  defendant.  The  plaintiffs  also 
gave  in  evidence,  that  the  defendant,  on  the  10th  ot  February 
1813,  immediately  after  the  execution  of  the  said  instrument  of 
writing,  and  in  pursuance  thereof,  was  put  into  the  possession  of 
the  lands  mentioned  in  the  said  writing,  by  the  said  Fraziert 
and  is  still  in  possession  of  the  same,  and  that  the  defendant  oa 
that  said  day,  to  wit,  the  10th  of  February  1813,  paid  to  the 
said  Frazier,  one  thousand  dollars.  The  plaintiffs  also  gave  in 
evidence  a  deed  dated  the  9th  of  August  1813,  executed  by 
them  to  the  defendant  for  the  lands  so  contracted  by  the  plain- 
tiffs to  be  conveyed  to  the  defendant,  Which  deed  was  made 


142  CASES  IN  THE  COURT  OF  APPEALS 

HIGDON  v  THOMAS— -1827. 

in  consideration  of  the  sum  of  $4,000  to  the  said  Fligdon  and 
wife,  paid  before  the  sealing  and  delivery  thereof,  the  receipt 
whereof  they  thereby  acknowledged,  and  was  prepared  at  the  in- 
stance of  the  defendant;  and  that  the  said  deed  after  its  execution, 
was  delivered  to,  and  accepted  by  the  defendant,  as  a  good  and 
sufficient  deed,  and  that  the  defendant,  at  the  time  of  his  accept- 
ance thereof,  said  he  wanted  no  other  deed.  The  plaintiffs  also 
gave  in  evidence  anotherdeed  for  the  same  lands,  bearing  date  the 
12th  of  April  1814,  executed  by  the  plaintiffs  to  the  defendant. 

After  the  above  evidence  was  read  and  given  to  the  jury, 
the  plaintiffs  closed  their  case.  The  defendant  then  prayed  the 
opinion  and  direction  of  the  court  to  the  jury,  that  upon  the 
evidence  offered  by  the  plaintiffs,  they  are  not  entitled  to  re- 
cover; which  opinion  the  Court,  [Shriver,  A.  J.]  gave,  and  so 
directed  the  jury.  The  plaintiffs  excepted;  and  the  verdict  be- 
ing for  the  defendant,  they  appealed  to  this  court. 

The  cause  was  argued  at  the  last  June  term  before  EARLE, 
MARTIN,  STEPHEN,  ARCHER,  and  DORSEY,  J. 

Boss,  for  the  Appellants,  contended,  that  the  bond  of  John 
S.  Frazier,  the  agent  of  the  plaintiffs  below,  dated  the  10th  of 
February  1813,  was  sufficient  evidence, 

1.  Of  an  agreement  in  writing,  and  signature  by  the  party, 
or  his  agent,  to  gratify  the  Statute  of  Frauds.  To  prove  this 
position,  he  cited  1  Pow.  on  Cont.  286,  287.  Ogilvievs.  Fol- 
jambe,  3  Meriv.  61.  Kennedy  vs.  Lee,Ib.  447,  448,449,450. 
Coles  vs.  Trecothick,  9  Ves.  250.  Clark  vs.  Wright,  1  Jltk. 
13,  (note  \.)  Welford  vs.  Beazely,  3  tftk.  504.  Ballard 
vs.  Walker,  3  Johns.  Cas.  65.  Clason  vs.  Bailey,  14  Johns. 
Pep.  484,  486.  M< Comb  vs.  Wright,  4  Johns.  Ch.  Bep.663. 
Batturs  vs.  Sellers  4*  Patterson,  5  Harr.  $f  Johns.  119.  It  is 
not  necessary  that  the  agreement  should  be  in  writing;  but  the 
evidence  of  it  must  be  in  writing.  Randall  vs.  Morgan,  12 
Ves.  71.  The  bill  of  parcels  is  not  to  be  considered  as  the 
contract  itself;  but  it  is  a  sufficient  memorandum  in  writing  of 
the  contract  within  the  meaning  of  the  Statute  of  Frauds.  Bat- 
turs  vs.  Sellers  4*  Patterson,  5  Harr.  fy  Johns.  120.  If  a  let- 
ter contains  the  terms  of  an  agreement,  or  acknowledges  or 
refers  to  a  former  written  one,  then  it  takes  it  out  of  the  Statute 


OF  MARYLAND.  143 


HIGDON  v.  THOMAS.— 1827. 


of  Frauds.  Clerk  vs.  Wright,  \*&tk.  13,  (note  \.)  Where 
there  is  a  complete  agreement  in  writing,  and  a  person  who  is 
a  party,  knows  the  contents,  subscribes  it  as  a  witness  only,  he 
is  bound  by  it;  for  it  is  a  signing  within  the  statute.  Welford 
vs.  Beazely,  3  Atk.  504.  Where  A  drew  up  a  note  of  the  a- 
greement  in  writing,  which  B  signed,  but  A  did  not  sign,  it 
was  decreed  the  agreement  of  both;  for  A's  drawing  up  the  a~ 
greement  in  his  own  hand,  and  procuring  B  to  sign  it  on  his 
part,  made  the  signing  of  B,  not  only  a  signing  for  himself,  but 
also  a  signing  as  authorised  by  A  to  close  the  agreement.  And 
if  B  had  come  into  a  court  of  equity  against  A,  the  court  would 
hare  decreed  the  agreement  against  him.  1  Pow.  on  Cont. 
287.  This  case  was  decided  soon  after  the  passage  of  the 
Statute  of  Frauds  The  construction  of  the  Statute  of  Frauds 
is  the  same  inequity  as  at  law;  indeed  the  court  of  equity 
professes  to  follow  the  law.  Morrison  vs.  Tumour,  IS  Ves. 
183.  Sudg.  G.  M'Comb  vs.  Wright,  4  Johns.  Ch.  Rep. 
666.  Forms  are  not  regarded;  and  the  statute  is  satisfied  if 
the  terms  of  the  contract,  and  the  names  of  the  contracting  par- 
ties, appear  in  the  memorandum.  Coles  vs.  -Trecothick,  9  Ves. 
252.  Morrison  vs.  Tumour,  18  Ves.  180,  (note  I.)  Clason 
vs.  Bailey,  14  Johns.  Pep.  486.  Kennedy  vs.  Lee,  3  Meriv. 
447.  Batturs  vs.  Sellers  4'  Patterson,  5  Harr.  8f  Johns.  119. 
As  to  the  effect  of  the  insertion  of  the  name  in  the  body  of  an 
agreement,  as  a  signature  within  the  Statute  of  Frauds,  see  Bat- 
turs vs.  Sellers  $  Patterson,  5  Harr.  fy  Johns.  119.  Clason, 
vs.  Bailey,  14  Johns.  Rep.  487,  and  the  cases  there  cited.  In, 
the  construction  of  all  contracts,  the  situation  of  the  parties, 
and  the  subject  matter  of  the  contract,  are  to  be  considered,  in 
order  to  determine  the  meaning  of  any  particular  provision. 
Wilson  vs.  Troup,  2  Cowen's  Rep.  196.  By  this  rule  let  the 
question  be  decided,  whether  Mrs.  Higdon  was  not  a  party  to 
the  contract. 

2.  That  tfrtemesia,  the  wife,  was  not  improperly  joined  in 
the  action  as  one  of  the  plaintiffs,  he  cited  1  Chitty's  Plead. 
19,  20.  Bashfordvs.  Buckingham,  Cro.  Jac.  77,  205.  Guy 
vs.  Livesey,  Ib.  501.  Jlleberry  vs.  Walby,  1  Stra.  229.  Bid- 
good  vs.  Way  Sf  Wife,  2  W.  Blk.  1239.  Ord  vs.  Fenwick, 
3  East,  106.  Philliskirk  Sf  Wife  vs.  Pluckwell,  2  Mauk  £ 


144  CASES  IN  THE  COURT  OF  APPEALS 

HIGDON  v.  THOMAS.— 1827. 

Selw.  393.  Arnold  vs.  Revoult,  5  Serg.  <$•  Low.  141.  The 
State  vs.  Krebs,  6  Harr.  8?  Johns.  37.  Reeves  Dom.  Rel.  60, 
61,  131,  132,  133. 

Palmer,  for  the  Appellee.  1.  The  evidence  does  not  sup- 
port the  issue.  2.  The  receipt  in  the  deed  is  prima  facie 
evidence  of  payment.  2.  There  is  a  misjoinder  of  husband 
and  wife  in  the  action.  It  should  have  been  in  the  name  of 
the  husband  alone. 

1.  The  action  is  brought  on  a  contract  recited  in  a  bond  giv- 
en to  the  defendant  below.     There  is  a  distinction  between  re- 
ferring to  a  contract  in  a  bond,  and  the  contract  itself.     Some 
of  the  counts  in  the  declaration  set  out  a  contract  different 
from  that  recited  in  the  bond.     Higdon  and  wife  were  not 
bound  to  make  the  deed  under  the  agreement  made  by  Fra- 
zier.     The  wife  was  not  bound  by  the  contract  either  at  law 
or  in  equity.     Bingh.  on  Infancy,  300.     Emery  vs.  Wase,  5 
Ves.  848.     Sedgwick  vs.  Hargrave,  2  Ves.  57.     The  contract 
cannot  remain  partly  by  writing,  and  partly  by  parol.     Stat. 
Frauds,  29  Car.  II,  ch.  3,s.  4,  17.    Parkhurst  vs.  Van  Cort- 
landt,  1  Johns.  Ch.  Rep.  273,  282.     The  recital  of  the  con- 
tract in  the  bond  is  not  the  best  evidence  which  the  nature  ol 
the  case  admitted  of.     The  contract  itself  should  be  produced. 
Phill.  Evid.  356.     Johnson  vs.  Mason,  1  Esp  Rep.  89.  Shel- 
ley vs.  Wright,  Willes,  1 1      Stroughton  vs.  Lynch,  2  Johns. 
Ch.  Rep.  222.     The  writing  the  name  in  the  bond  reciting  a 
contract,  is  not  a  signing  within  the  Statute  of  Frauds.   Rob.  on 
Frauds,  121.  Glynn  vs.  Bank  of  England,  6  Ves.  39.  Jack' 
son  vs.  Pierce,  2  Johns-  Rep.  221. 

2.  The  receipt  in  the  deed  is  prima  facie  evidence  that  the 
money  has  been  paid.    Dixon  vs.  Swiggett,  1  Harr.  8?  Johns. 
252.     The  receipt  in  the  deed  operated  as  an  estoppel. 

3.  As  to  the  misjoinder  of  the  wife  in  the  action,  he  cited  t 
Chitty's   Plead.  18,  22,  314.      Bingham  on   Infancy,  300. 
Sedgwick  vs.  Hargrave,  2  Ves.  57.    Emery  vs.  Wase,  5  Ves. 
848.      Hall  vs.  Hardy,  3  P.  Wms.  189,    Lines  vs.  Jackson, 
16  Ves.  367.     1  Madd.  Ch.  6.     Campbell  vs.  Jones,  6  T.  R. 
570.    Pordage  vs.  Cole,  1  Saund.  320,  (note  4.)  Buckley  vs. 
Collier,  \  Salk.  114.     Bashford  vs.  Buckingham,  Cro.  Jac. 


MARYLAND.  145 


Hieixm  v    THOMAS. — 1827. 


77.  Bidgood  vs.  Way  Sc  Wife,  2  W.  Blk.  1236.  Yard  vs. 
Ellard,  Garth.  462.  3  Thomas's  Co.  Lift.  312,  (note.) 
The  State  use  of  Rogers  vs.  Krebs,  6  Harr.  8?  Johns.  37. 

Ross,  in  reply,  as  to  the  point  that  the  receipt  in  the  deed 
was  conclusive  evidence  of  the  payment  of  the  consideration 
therein  expressed,  cited  Shephard  vs.  Little,  14  Johns.  Rep. 
210.  Bowen  vs.  Bell,  20  Johns.  Rep.  338.  Hamilton  vs. 
M'Guire,  3  Serg.  4-  Rawle,  355.  Weigley's  Jldmr.  vs.  Wier, 
7  Serg.  #  Rawle,  309.  Wilkinson  vs.  Scott,  17  Mass.  Rep. 
257.  O'Neale  vs.  Lodge,  3  Harr.  fy  M'Hen.  433. 

Curia  adv.  vult. 

DORSEY,  J.  at  this  term  delivered  the  opinion  of  the  Court. 
It  being  conceded  in  argument,  (as  is  unquestionably  settled 
by  authority,)  that  the  receipt  in  a  deed,  for  the  conveyance 
of  land,  is  only  prima  facie,  and  not  conclusive  evidence 
of  the  payment  of  the  purchase  money;  in  determining  this 
cause,  two  questions  only  are  necessary  to  be  considered;  and 
these,  it  must  be  admitted,  are  neither  free  from  difficulty  nor 
doubt. 

Has  the  defendant  signed  a  note  or  memorandum  in  writing 
of  the  agreement,  as  required  by  the  statute  of  29  Car.  II,  ch. 
3?  is  the  question  which  first   presents  itself.     The  nature  of 
the  requisite  signature,  in  cases  analogous  to  that  now  before  us, 
although  again  and  again  examined  and  discussed  in  England, 
and  elsewhere,  does  not  appear  heretofore  to  have  been  the  sub- 
ject of  judicial  scrutiny  in  this  state.     In  Lemayne  vs.  Stanly, 
3  Lev.  1,  among  the  first  cases  upon  the  subject  which  arose 
after  the  statute,  and  which  occurred  only  four  years  from  its 
passage,  after  several  arguments  it  was  adjudged,  that  a  will  of 
lands  in  fee,  in  the  handwriting  of  the  testator,   beginning  "In 
the  name  of  God,  Amen.  I  John  Stanley  make  this  my  last 
will  and  testament,"  &c.  not  subscribed  by  the  testator,  but 
subscribed  by  three  witnesses  in  his  presence,  was  a  good  will. 
"For  (in  the  language  of  the  court,)  being  written  by  himself, 
and    his  name  in  the  will,  'tis  a  sufficient  signing  within  the 
statute,  which  does  not  appoint  where  the  will  shall  be  signed, 
in  the  top,  bottom  or  margin, and  therefore  a  signing  in  any  part 
is  sufficient. "    This  case  turned  on  the  construction  of  the  fifth 
VOL.  i.  19 


146  CASES  IN  THE  COURT  OP  APPEALS 

HIGDON  v.  THOMAS.— 1827. 

section  of  the  Statute  of  Frauds.  The  case  before  us  depends 
on  the  intrepretation  of  the  fourth  section,  but  the  phraseology 
of  both  sections,  as  respects  signing,  is  equally  imperative,  and 
substantially  the  same.  In  Knight  vs.  Crockford,  1  Esp.  Rep. 
190,  the  doctrine  of  Lemayne  vs.  Stanley  is  established  in  a 
case  arising  under  the  fourth  section.  At  the  trial  the  plain- 
tiff produced  a  memorandum  of  the  agreement,  beginning  "I 
James  Crockford,  agree  to  sell,"  &c.  but  signed  only  by  the 
plaintiff,  and  witnessed  by  one  Mills.  On  the  objection  that 
the  agreement  was  void  within  the  Statute  of  Frauds,  as  not  be- 
ing signed  by  the  defendant,  it  only  beginning  "I  James  Crock- 
ford  agree,  "&c.  and  not  having  his  name  subscribed  to  it,  Eyre, 
Chief  Justice,  held  "that  the  agreement  contained  a  sufficient 
signing  within  the  Statute  of  Frauds,  by  beginning  in  the  de- 
fendant's own  handwriting,  "I  James  Crockford  agree,"  &c.  In 
JBawdesvs.^mherst,  1  Eq.  Ca.  Jib.  21,  Lord  Chancellor  Cow- 
per  said,  "he  knew  of  no  case  where  an  agreement,  though 
Wrote  by  the  party  himself,  should  bind,  if  not  signed,  or  in 
part  executed  by  him;"  adding,  that  the  agreement  was  suscep- 
tible of  alterations  or  additions,  and  might  have  been  entirely 
broken  off. 

Alterations  made  by  the  defendant  in  his  own  handwriting 
in  the  draught  of  an  agreement,  and  a  delivery  thereof  to  an 
attorney  to  be  engrossed,  were  held  not  to  be  a  signing  within 
the  statute,  in  Hawkins  vs.  Holmes,  1  P.  Wms.  770.  In  re- 
ply to  the  argument  ot  the  plaintiff's  counsel  on  the  plea  of  the 
Statute  of  Frauds  and  Perjuries,  Mr.  Williams  answers,  "that 
the  statute  requires  that  the  party,  or  some  person  by  him  law- 
fully authorised,  should  sign  the  writing;  and  though  the  defen- 
dant had  altered  the  draught  with  his  own  hand,  yet  this  could 
not  be  called  a  signing;  that  the  statute  requires  signing  as  a 
material  circumstance,  which  is  not  to  be  dispensed  with  in 
equity  any  more  than  at  law;  that  if  the  defendant  had  himself 
wrote  over  the  whole  deed  with  his  own  hand,  without  sign- 
ing it,  this  had  not  been  sufficient;  for  the  statute  has  made 
signing  absolutely  necessary  for  the  completion  of  the  contract: 
for  which  purpose  I  cited  the  case  of  Ithelvs.  Potter." 

Referring  to  the  case  of  Hawkins  vs.  Holmes,  1  P.  Wms, 
770,  and  Ithelvs.  Potter,  as  there  cited,  Sugden,  in  his  valua- 


OP  MARYLAND^  147 


HIGDOW  v.  THOMAS. — 1827. 


ble  treatise  upon  the  Law  of  Vendors,  55,  (73,)  states,  that  "the 
mere  altering  the  draft  of  the  conveyance  will  not  take  a  case 
out  of  the  statute;  neither  will  the  writing  over  of  the  whole 
draft  by  the  defendant  with  his  own  hand,  be  sufficient,  as  there 
must  be  a  signature.  To  this  rule  (he  adds,)  we  may  perhaps 
refer  the  case  of  Stokes  vs.  Moore,  1  Cox,  219,  where  the  de- 
fendant wrote  instructions  for  a  lease  to  the  plaintiff,  in  these 
words,  viz.  "The  lease  renewed;  Mr.  Stokes  to  pay  the  King's 
tax;  also  to  pay  Moore  £24  a  year,  half  yearly;  Mr.  Stokes  to 
keep  the  house  in  good  tenantable  repair,  &c.  Stokes,  the  les- 
see, filed  a  bill  for  a  specific  performance,  and  the  court  of  ex- 
chequer held  it  not  to  be  a  sufficient  signing,  to  take  the  agree- 
ment  out  of  the  statute;"  although  it  was  not  necessary  to  de- 
cide the  point.  In  Stokes  vs.  Moore,  the  Lord  Chief  Baron, 
in  delivering  his  opinion  says,  "this  is  no  formal  signature  of 
the  defendant's  name,  and  the  question  is,  whether  so  inserted 
and  written  by  the  defendant,  is  a  sufficient  signing?  The  pur- 
port of  the  statute  is  manifest,  to  avoid  all  parol  agreements, 
and  that  none  should  have  effect  but  those  signed  in  the  manner 
therein  specified^  It  is  argued  that  the  name  being  inserted  in 
any  part  of  the  writing  is  a  sufficient  signature.  The  meaning 
of  the  statute  is,  that  it  should  amount  to  an  acknowledgment  by 
the  party,  that  it  is  his  agreement,  and  if  the  name  does  not  give 
such  authenticity  to  the  instrument,  it  does  not  amount  to  what, 
the  statute  requires. "  In  the  same  case  and  to  the  same  effect 
is  Baron  Eyre  equally  explicit.  "The  signature,  (says  he,)  is 
to  have  the  effect  of  giving  authenticity  to  the  whole  instru- 
ment; and  if  the  name  is  inserted  so  as  to  have  that  effect,  I  do 
not  think  it  signifies  much  in  what  part  of  the  instrument  it  is 
to  be  found ;  it  is  perhaps  difficult,  except  in  the  case  of  a  letter 
with  a  postscript,  to  find  an  instance  where  the  name  inserted 
in  the  middle  of  a  writing,  can  well  have  that  effect;  and  there 
the  name  being  generally  found  in  a  particular  place  by  the 
common  usage  of  mankind,  it  may  very  probably  have  the  ef- 
fect of  a  legal  signature,  and  extend  to  the  whole;  but  I  do  not 
understand  how  a  name  inserted  in  the  body  of  an  instrument, 
and  applicable  to  particular  purposes,  can  amount  to  such  an 
authentication  as  is  required  by  the  statute."  The  case,  how- 
ever, was  decided,  on  the  ground,  that  the  memorandum  was 


148  CASES  IN  THE  COURT  OP  APPEALS 

HIGDON  v.  THOMAS. — 1827. 

not  the  whole  or  final  agreement  between  the  parties.  Roberts, 
in  his  treatise  on  the  Statute  of  Frauds,  121,  in  commenting 
on  the  signing  required  by  the  statute,  tells  us  "the  place  of 
the  signature  seems  not  to  have  been  regarded  as  of  much  im- 
portance. If  the  name  is  inserted  in  any  part  of  the  instru- 
ment, it  may  operate  as  a  signing  under  the  Statute  of  Frauds; 
but  then  it  must  have  been  inserted  for  the  clear  and  only  pur- 
pose of  giving  authenticity  to  the  instrument."  The  same  prin- 
ciple is  sanctioned  by  Sugden,  in  his  Law  of  Vendors  56,  (74;) 
and  is  recognized  in  Ogilvie  vs.  Foljambe,  3  Merivale,  52,  in 
which  the  Master  of  the  Rolls  states,  "it  is  admitted,  that  pro- 
vided the  name  be  inserted  in  such  manner  as  to  have  the  effect 
of  authenticating  the  instrument,  the  provision  of  the  act  is 
complied  with,  and  it  does  not  much  signify  in  what  part  of  the 
instrument  the  name  is  to  be  found." 

If  the  correctness  of  this  general  rule  be  admitted,  for  the 
establishment  of  which  it  must  be  confessed  that  the  authorities, 
herein  before  referred  to,  are  of  the  most  imposing  character, 
it  cannot  be  contended,  that  the  writing,  upon  which  this  action 
is  founded,  takes  the  case  without  the  statute,  as  in  no  part  of 
it  is  the  name  of  the  defendant  written  for  the  purpose  of  giv- 
ing it  authenticity,  or  acknowledging  it  to  be  genuine.  But  if 
these  authorities  be  minutely  and  separately  examined,  they 
are  not  of  that  conclusive  nature,  which  might  be  ascribed  to 
them  on  a  more  superficial  examination.  The  cases  of  Lemayne 
vs.  Stanley,  and  Knight  vs.  Crockford,  simply  show,  that  a 
technical  or  formal  signature  is  not  requisite,  and  that  a  will  or 
agreement  without  the  subscription  of  the  party  making  it,  com- 
mencing, "I,  AB,"  &c.  if  in  his  own  handwriting,  is  sufficient- 
ly signed.  Nothing  is  said  ot  any  general  rule  by  which  cases 
ot  this  nature  are  to  be  tested. 

The  doctrine  of  Lord  Chancellor  Cowper,  in  Bawdes  vs. 
<fl.mhe.rst,  if  received  with  the  meaning  usually  ascribed  to  it, 
viz.  that  a  formal  signature  is  necessary,  is  contradicted  by  Le- 
-mayne  vs.  Stanley,  Knight  vs.  Crockford,  Saunderson  vs. 
Jackson,  and  another,  2  Bos.  fy  Pull.  238,  and  Ogilvie  vs. 
Foljambe',  and  is  denied  to  be  law  by  Lord  Hardwicke  iu 
Welford  vs.  Beazely,  3  Jltk.  503,  and  its  repudiation  has 
been  sanctioned  by  all  subsequent  writers  upon  the  subject. 


OF  MARYLAND.  149 


HIGDON  v.  THOMAS.— 18-7. 


Hawkins  vs.  Holmes  differs  from  the  present  case  in  many 
essential  particulars.  There  the  instrument  was  in  the  hand- 
writing of  a  stranger  to  the  contract,  and  not  of  the  party 
against  whom  it  was  attempted  to  be  enforced.  It  does  not  ap- 
pear, (nor,  from  the  nature  of  the  transaction  is  it  at  all  pro- 
bable that  it  were  so,)  that  the  writing  of  his  own  name  was 
any  part  of  the  alterations  made;  nor  if  it  were,  that  it  was  so 
inserted  as  to  govern  or  be  applicable  to  all  the  provisions  of 
the  coi, tract. 

Ithel  vs.  Potter  not  being  reported,  we  know  not  that  its 
facts  bore  any  analogy  to  those  now  under  consideration.  'Tig 
true  Mr.  Sugden  understood  Mr.  Williams  as  asserting,  that 
in  Ithel  vs.  Potter  it  was  determined,  that  the  writing  over 
the  whole  draft  by  the  defendant,  with  his  own  hand,  will  not 
be  sufficient.  But  the  language  of  Mr.  Williams  would  bear, 
and  is  perhaps  grammatically  more  susceptible  of  a  different 
interpretation,  viz. — that  the  only  purpose  for  which  Ithel  vs. 
Potter  was  cited,  was  as  establishing  the  immediately  preced- 
ing legal  position,  that  "the  statute  has  made  signing  absolute- 
ly necessary  for  the  completion  of  the  contract;"  and  that  the 
assertion  of  Mr.  Williams,  that  the  writing  over  the  whole 
draft  by  the  defendant,  with  his  own  hand,  will  not  be  suffici- 
ent, was  an  inference  of  counsel  by  way  of  argument,  sup- 
posed to  be  deducible  from  the  decision  in  Ithel  vs  Potter, 
that  signing  was  absolutely  necessary.  At  all  events  an  equivo- 
cal statement  of  a  case,  in  the  argument  of  counsel,  which  has 
never  been  reported,  is  an  authority  of  the  most  feeble  cha- 
racter. 

The  bearing  of  the  decision  in  Stokes  vs.  Moore  is  certainly 
not  so  easily  obviated;  as  the  similitude  of  that  case  to  the  one 
now  before  us,  is  much  greater  than  that  of  any  other  of  the 
cases  herein  befoie  referred  to.  But  of  the  doctrine  in  that 
case  Lord  Eldon  is  reported  to  have  said  he  had  some  doubt. 
(VidzSug.  Ven.  (55,)  73.)  It  may  also  be  added,  that  the 
decision  is  in  the  nature  of  an  obiter  dictum,  as  the  decree  was 
pronounced,  and  bill  dismissed,  on  the  ground  that  the  memo- 
randum did  not  contain  the  whole  or  final  agreement  between 
the  parties.  Admit,  however,  the  decision  to  be  correct,  and 
made  too  because  the  signing  was  not  sufficient,  it  does  not  set- 


150  CASES  IN  THE  COURT  OF  APPEALS 

HIGDON  v.  THOMAS. — 1827. 

tie  the  question  now  in  controversy;  the  name,  as  there  inserted, 
was  only  applicable  to  particular  purposes,  and  did  not  necessari- 
ly connect  itself  with,  and  operate  on  every  other  part  of  the 
agreement.  In  Ogilvie  vs.  Foljambe,  the  Master  of  the  Rolls, 
in  a  part  of  his  opinion,  sanctions  the  inference,  that  he  did  not 
use  the  word  authenticating  in  its  usual  literal  import,  but  in  a 
sense  entirely  consistent  with  the  plaintiff's  right  to  recover. 

This  general  rule,  as  to  what  must  be  the  object  in  writing 
the  name,  which  is  necessary  to  constitute  a  signing  within  the 
statute,  is  of  modern  origin,  and  first  presents  itself  in  Stokes 
vs.  Moore,  decided  in  1786;  and  is  afterwards  adopted  by  Sug- 
den  and  Roberts,  and  by  Sir  Samuel  Romilly  in  arguing  the 
case  of  Morrison  vs  Tumour,  18  Ves.  180,  in  which  he  states, 
that  "a  man  thus  describing  himself  in  the  third  person,  has 
never  been  decided  to  have  signed  within  the  act  of  parliament, 
which  requires  a  signature  as  attesting  what  he  has  written.  It 
is  not  necessary  to  sign  it  as  an  agreement;  but  he  must  sign. 
In  the  instance  of  the  will,  the  name  though  in  the  beginning, 
authenticated  the  whole  instrument,  as  that  by  which  the  testa- 
tor meant  to  abide  as  his  will,  which  is  very  different  from  a 
name  occurring  in  the  third  person." 

The  object  of  the  statute  being  to  substitute  written  for  oral 
evidence,  and  thereby  prevent  frauds,  and  perjuries,  its  almost 
contemporaneous  exposition,  in  Lemayne  vs.  Stanley,  an- 
nounces to  us,  that  a  liberal  and  free  construction  is  to  be  given 
to  it;  that  substance,  and  not  form,  amounts  to  a  compliance  with 
its  provisions,  that  if  the  name  of  a  testator  appear  in  any  part 
of  a  will  written  by  himself,  it  is  sufficiently  signed.  The  same 
principle  is  recognized  in  Knight  vs.  Crockford,  and  in  Wei- 
ford  vs.  Beazely;  in  deciding  the  latter  of  which  cases  the 
words  of  Lord  Hardwicke  are  "the  meaning  of  the  statute  is 
to  reduce  contracts  to  a  certainty,  in  order  to  avoid  perjury  on. 
the  one  hand,  and  fraud  on  the  other;  and  therefore,  both  in 
this  court,  and  the  courts  of  common  law,  where  an  agreement 
has  been  reduced  to  such  a  certainty,  and  the  substance  of  the 
statute  has  been  complied  with  in  the  material  part,  the  forms 
have  never  been  insisted  on."  Can  it  then  be  denied,  that  such 
object  of  the  statute  is  as  completely  gratified,  as  much  certain- 
ty attained  by  the  agreement  here  relied  on,  as  if  it  had  been 


OF  MARYLAND.  151 


v.  THOMAS. — 1827. 


written  in  the  first  instead  of  the  third  person?  It  is  not  a  re- 
finement upon  subtlety,  a  total  sacrifice  of  substance  to  form, 
to  say,  that  if  the  agreement  had  commenced,  "Whereas  I, 
Samuel  S.  Thomas,  have  purchased  of  John  S.  Frazier," 
&c.  the  signature  is  complete,  the  objects  of  the  statute  have 
been  accomplished,  and  the  contract  is  available;  but  if  it  com- 
mences, as  it  does  here,  "Whereas  John  S.  Frazier  hath  con- 
tracted to  sell  to  Samuel  S.  Thomas"  &c.  there  is  is  no  sign- 
ing, the  provisions  of  the  statute  have  not  been  complied  with, 
and  the  contract  is  a  nullity.  And  yet  such  is  the  effect  of  thia 
rule,  and  the  construction  which  has  been  given  to  the  authori- 
ties referred  to.  An  absurdity  so  glaring  will  never  be  sanc- 
tioned by  this  court  but  upon  authorities  too  conclusive  to 
be  disregarded.  Nor  does  this  famous  rule  appear  to  be  con- 
sistent with  the  reasoning  of  the  learned  tribunal  in  the  case  in 
which  it  was  adopted,  or  free  from  doubt  or  unshaken  hy  judi- 
cial decisions  of  the  country  in  which  it  was  promulgated.  In 
Stokes  vs.  Moore,  Baron  Eyre,  after  stating  the  rule  says  "but 
I  do  not  understand  how  a  name  inserted  in  the  body  of  an  in- 
strument, and  applicable  to  particular  purposes,  can  amount 
to  such  an  authentication  as  is  required  by  the  statute."  But 
if  a  case  had  arisen  like  the  present,  where  the  name  is  inserted 
in  such  a  way  as  to  control  the  whole  agreement,  and  be  appli- 
cable to  every  purpose  of  it,  the  inference  would  not  be  un- 
reasonable, from  the  learned  Baron's  own  reasoning,  that  he 
did  understand  how  it  could  amount  to  such  an  authentication 
as  the  statute  requires.  Moreover,  the  case  of  Stokes  vs.  Moore, 
is  now  understood  to  have  turned,  not  upon  the  circumstance 
of  the  name  being  contained  in  the  body  of  the  instrument, 
but  its  being  applicable  to  particular  purposes  only,  and  not  go- 
verning the  whole  instrument:  as  fully  appears  from  the  opi- 
nion of  the  Master  of  the  Rolls  in  Ogilvie  vs.  Foljambe.  la 
which  he  says  "it  is  admitted,  that  provided  the  name  be  in- 
serted in  such  manner  as  to  have  the  effect  of  authenticating 
the  instrument,  the  provision  of  the  act  is  complied  with,  and 
it  does  not  much  signify  in  what  part  of  the  instrument  the 
name  is  to  be  found.  In  Stokes  vs.  Moore  the  objection  was 
that  this  authentication  was  wanting,  the  name  being  introduced 
incidentally  in  the  middle  of  the  paper,  and  referring,  in  gram- 


152  CASES  IN  THE  COURT  OF.  APPEALS 

HIGDON  v.  THOMAS. — 1827. 

matical  construction  only,  to  a  single  term  in  the  conditions. 
There  was  no  objection  on  the  score  of  the  Christian  name  be- 
ing wanting,  but  the  ground  of  the  decision  was,  that  the 
name,  being  introduced  Where  it  was,  did  not  govern  the  en- 
tire agreement."     From  these  remarks  of  the  Master  of  the 
Rolls  it  manifestly  follows,  that  he  deemed  an  agreement,  in 
the  handwriting  of  a  defendant,  with  his  name  so  inserted  in  the 
body  of  it,  as  to  govern  the  whole  agreement,  sufficiently  signed 
within  the  meaning  of  the  statute.     That  the  name  of  Samuel 
S.  Thorns  is  so  inserted  in  the  agreement  in  question   cannot 
be  denied,  as  it  forms  a  part  of  every   clause  and  provision 
which  it  contains.     The  case  of  Saunderson  vs.  Jackson.,  de- 
termined  by  Lord  Eldon,  whilst   chief  justice  of  the   com- 
mon pleas,  is  also  strongly  in  favour  of  the  plaintiff,  and  the 
decison  of  the  supreme  court  of  New-York,  affirmed  in  the 
high  court  of  errors,  in  Clason  vs.  Bailey,  14  Johns.  Rep. 
487,  presenting  the  identical  question  before  us,  is  of  the  most 
imperious  authority.     Chancellor  Kent,  in  delivering  his  opi- 
nion, there  states,  that  "it  is  a  point  settled,  that  if  the  name  of 
a  party  appears  in  the  memorandum,  and  is  applicable  to  the 
whole  substance  of  the  writing,  and  is  put  there  by  him  or  by 
his  authority,  it  is  immaterial  in   what  part  of  the  instrument 
the  name  appears,  whether  at  the  top,  in  the  middle,  or  at  the 
bottom.     Forms  are  not  regarded,  and  the  statute  is  satisfied  if 
the  terms  of  the  contract  are  in  writing,  and  the  names  of  the 
contracting  parties  appear.    "This  doctrine  of  Chancellor  Kent? 
is   so  simple  in  its  nature,  so  easy  of  application,  so  consonant 
to  reason  and   common   sense,  that  supported,  as  it  is,  by  the 
opinions  of  Lord   Hnrdwicke,   Lord  Eldon,  and    Sir   Wm. 
Grant,  it  would  be  a  safer  guide  to  follow,  than  the  technical 
rule  to  which  the  case  of  Stokes  and  Moore  has  given  birth. 
Whether  the  name  of  the  defendant  therefore  be  so  introduced 
as  to  authenticate  the  whole  instrument  or  not,  is  deemed   im- 
material, if  it  be  so  inserted  as  to  govern  or  be  applicable  to 
the  whole  substance  of  the  writing. 

If  it  be  conceded  that  Samuel  S.  Thomas  is  liable  to  an  ac- 
tion on  the  agreement,  the  next  and  only  remaining  question  to 
be  considered  is,  can  such  action  be  sustained  in  the  joint  names 
of  Higdon  <§'  Wife,  the  present  plaintiffs?  The  agreement, 


OF  MARYLAND* 


HIGDON  v.   THOMAS. — 1827. 


designates  no  person  to  whom  the  purchase  money  is  to  be  paid. 
View  it  then  as  a  case  of  implied  promise.  Where  the  law  is 
left  to  raise  the  assumpsit,  it  is  always  implied  in  favour  of 
those  who  are  the  meritorious  cause  of  action,  or  from  whom 
the  consideration  moves.  The  consideration  here  being  the 
inheritance  of  the  wife,  in  or  over  which,  during  his  life  only, 
has  the  husband  any  interest  or  control,  in  the  absence  of  an. 
express  promise,  the  law  will  raise  one  to  husband  and  wife,  on. 
whieh  the  husband  may,  at  his  pleasure,  either  sue  in  his  own 
name,  or  in  the  names  of  himself  and  wife.  But  suppose  it 
be  considered  that  the  agreement  does  amount  to  an  express 
promise  to  pay  to  the  husband;  is  it  not  perfectly  consistent 
with  legal  principles,  in  analogous  cases,  that  the  husband  having 
acted,  by  the  consent  of  the  wife,  concerning  a  subject  matter 
Over  which  he  had  no  power  or  control  but  in  virtue  of  such 
consent,  shall  be  deemed  to  have  acted  on  the  account,  and  for 
the  benefit  of  himself  and  wife.  Nor  would  his  concealment 
of  the  principles  on  which  he  acted  at  all  vary  the  case.  It  is 
every  day's  practice  for  the  owners  of  merchandize^  or  other 
property,  to  sue  in  their  own  names  on  contracts  of  sale  made 
b}r  their  agents,  to  whom  express  promises  to  pay  have  beeri 
made,  and  with  whom  the  vendee's  dealt,  as  sole  owners  of 
the  property,  having  no  knowledge  of  their  principals.  So,  also 
where  one  part-owner  sells,  as  his  own,  the  property  of  his 
firm,  all  the  partners  may  sue.  But  there  could  be  no  conceal- 
ment from  the  defendant  of  the  intentions  with  which  Thomas 
Higdon  acted  through  his  agent,  John  <Sl  Frazier,  as  the  con- 
dition of  the  bond  of  conveyance  is,  that  the  deed  to  Samuel 
S.  Thomas  shall  be  executed  by  Higdon  and  Wife,  That  the 
defendant  is  in  anywise  damnified  by  the  present  form  of  ac- 
tion, has  not  been  even  insinuated. 

It  is  not  intended  to  impugn  the  numerous  decisions  which 
have  been  cited,  that  a  feme,  covert  cannot  be  joined  in  an  ac- 
tion to  recover  the  price  of  property  sold  by  her,  and  which 
belonged  to  her  before  coverture;  or  the  value  of  services  by  her 
personally  rendered,  unless  there  be  made  to  her  an  express 
promise  of  payment.  But  these  decisions  apply  only  to  cases 
of  goods  and  chattels,  which  by  the  marriage  vested  absolutely 
Jn  the  husband;  as  does  the  right  of  her  personal  services,  and 
1  20 


154       CASES  IN  THE  COURT  OP  APPEALS 

CAPPEAU  v.  MIDDLE-TON  &  BAKEII. — 1827. 

are  wholly  inapplicable  to  a  case  where  the  rights  of  the  wife 
pass  not  to  the  husband,  but  remain  and  survive  to  her,  and 
over  which  the  husband  has  no  power  of  transfer,  but  by  the 
consent  and  co-operation  of  the  wife. 

Being  of  opinion  that,  upon  the  whole  circumstances  of  the 
case,  the  plaintiffs  are  entitled  to  recover,  and  in  the  form  of 
action  too  in  which  they  have  sought  to  prosecute  their  rights, 
We  reverse  the  judgment  of  the  county  court. 

JUDGMENT  REVERSED,  AND  PROCEDENDO  AWARDED. 


CAPPEAU'S  Bail  vs.  MIDDLE-TON  &  BAKER. — June,  1827. 

A  writ  of  scire  facias  against  special  bail,  which  does  not  recite  the  issue  and 
return  of  a  ca  sa.  is  sufficient  upon  issue  joined  on  the  plea  of  nul  lid 
record. 

To  such  writ,  the  bail  having  pleaded  the  death  of  his  principal  before  any 
ca.  sa.  returned,  the  plaintiff  in  his  replication  traversed  that  fact,  and 
tendered  an  issue  to  the  country.  Its  conclusion  was  technically  right;  an 
issue  joined  on  such  pleadings,  is  not  an  immaterial  one,  the  whole  mat- 
ter in  controversy  being  decided  by  it. 

The  omission  of  the  plaintift  in  his  replication  to  set  out  the  ta.  sa.  and  re 
turn,  in  proceedings  against  bail,  is  mere  informality  in  pleading,  bad  only 
on  demurrer,  and  cured  by  verdict. 

The  power  conferred  on  a  commissioner  to  take  testimony  is  strictly  per- 
sonal. Especial  confidence  is  presumed  to  be  reposed  in  the  person  ap- 
pointed, and  he  cannot  delegate  his  authority. 

APPEAL  from  Baltimore  County  Court.  On  the  8th  of  May 
1818  a  writ  of  scire  facias  issued  out  of  Baltimore  county 
court,  on  a  recognizance  of  special  bail  entered  into  in  the  usual 
form  in  that  court  at  September  term  1816,  by  Joseph  Cappeau^ 
(the  appellant,)  for  Charles  Cappeau,  at  the  suit  of  Middle 
ton  and  Baker,  (the  appellees,)  in  a  plea  of  trespass  on  the 
case,  &c.  by  the  said  Middleton  and  Baker  against  the  said 
Charles  Cappeau,  in  the  same  court  prosecuted,  &c.  The 
writ  of  scire  facias  then  stated,  that  in  the  said  court  in  Sep- 
tember 1817,  Middleton  and  Baker  recovered  judgment  against 
Charles  Cappeau  for  the  sum  of,  &c.  Nevertheless  the  said 
C.  Cappeau  the  damages,  &c.  to  the  said  Middleton  and  Baker 
had  not  satisfied,  nor  his  body  in  execution  of  such  judgment 
to  the  public  prison  of  the  said  county  had  rendered,  &c.  Where- 
fore the  said  Middleton  and  Baker  had  besought  a  proper  reme- 


OF  MARYLAND.  155 


CAPPEAU  v.  MIDDIBTOK  &  BAKER. — 1827. 


dy,  &c.  Command  was  therefore  given  to  the  sheriff  to  give 
notice  to  Joseph  Cappeau,  in  the  usual  form  of  such  writs  of 
scire  facias.  The  defendant,  (the  special  bail,)  appeared,  and 
pleaded,  (after  praying  oyer  of  the  writ  of  scire  facias,}  1. 
Nul  tiel  record  of  recognizance.  2.  That  before  the  suing 
out  of  the  writ  of  scire  facias,  and  before  the  return  of  any 
writ  of  capias  ad  satisfaciendum  issued  on  the  said  judgment 
against  the  said  Charles  Cappeau,  to  wit,  on,  &c.  the  said 
Charles  died,  to  wit,  at  Saint  Domingo,  &c.  To  the  first 
plea  the  plaintiffs  replied  habetur  tale  recordum  of  recogni- 
zance, and  issue  was  joined  to  the  court  upon  the  record.  To 
the  second  plea  the  plaintiffs  replied,  that  Charles  Cappeau 
did  not  die  before  the  return  of  the  writ  of  capias  ad  satis- 
faciendum  issued  against  him  upon  the  said  judgment;  and 
tendered  an  issue  to  the  country,  which  was  joined  in  by  the 
defendant.  Upon  the  first  issue,  the  county  court  gave  judg- 
ment for  the  plaintiffs,  that  there  was  such  record,  &c. 

At  the  trial  of  the  issue  joined  on  the  second  plea,  the  de- 
fendant offered  in  evidence  a  commission  issued  out  of  Balti- 
more county  court,  in  the  usual  form,  to  Robert  Lavens  and 
Pelegrin  Vidal  of  Mayaguez,  commissioners,  for  taking  the 
testimony  of  witnesses  in  the  said  action,  by  them  or -either  of 
them,  &c.  Also  the  translations,  (made  by  consent  of  the  par- 
ties,) of  certain  depositions  in  the  Spanish  language,  returned 
with  the  said  commission.  It  appeared  by  the  return  of  Robert 
Lavens,  the  commissioner  who  acted,  that  he  addressed  a  re- 
quest to  the  governor,  judge  or  the  proper  officer  of  the  place, 
to  cause  the  commission,  which  was  in  English,  to  be  trans- 
lated into  the  Spanish  language  by  the  public  interpreter  of 
the  town  of  Yagues,  where  the  commissioner  resided.  This 
was  complied  with.  The  commissioner  then  addressed  another 
request  to  the  same  person,  in  which,  stating  himself  to  be 
commissioner,  £c.  he  requested  that  he  would  be  pleased  to 
admit  a  declaration  of  witnesses,  and  to  bind  under  oath  those 
whom  he  the  commissioner  should  present,  to  answer  certain  in- 
terrogatories which  might  be  propounded  according  to  the  usual 
form.  He  then  set  forth  the  interrogatories.  And  that  these 
being  done,  to  let  a  testimony  of  these  proceedings,  corroborat- 
ed by  the  signature  of  two  or  three  notaries  public,  be  drawn, 


156  CASES  IN  THE  COURT  OF  APPEALS 

CAFPEAU  v.   MIDDIETON  &  BAKER. — 1827. 

&c.  This  request  was  granted,  with  directions,  that  all  the 
witnesses  presented  swear  and  declare  according  to  the  form 
and  manner  requested,  &c.  It  was  then  stated  that  in  the  town 
of  Mayaguez,  on  the  2d  of  August  1824,  "the  party  request- 
ing the  declaration,  presented  as  a  witness,  Joseph  Lenncr,  a 
resident  of  this  place.  The  Alcade  took  his  oath  before  me, 
which  he  performed  according  to  law,  and  under  which  pro- 
mised to  tell  the  truth  in  every  thing  which  he  would  be  inter- 
rogated; and  being;  requested  to  answer  the  preceding  interro- 
gatories; to  the  first,  he  said,"  &c.  "He  signed  it  with  the 
Mcade,  before  me.  I  attest,  Jlrroyo.  (Signed)  Mdicxi. 
(Signed)  Lenner.  Before  me,  (signed)  Peter  Jlrroyo,  Notary 
Public."  "On  the  same  day  I  notified,  and  delivered  these 
proceedings  to  the  party  concerned,  which  I  attested.  Signed 
Jfrroyo."  The  testimony  of  another  witness  was  taken  in  a 
similar  manner.  The  commissioner  who  acted,  then  certified 
to  Baltimore  county  court,  that  P.  Vidal  and  himself,  being 
charged  and  named  as  commissioners,  having  to  take  an  oath 
prescribed  in  the  commission,  before  a  person  authorised  to  ad- 
minister the  same,  presented  themselves  to  the  proper  authori- 
ty for  that  purpose,  and  were  informed  that  it  was  impossible 
to  act  extra-judic'isMy  in  this  case,  so  as  to  effect  the  commis- 
sion according  to  the  tenor  of  the  oath.  That  before  they  could 
cite  any  witness  in  this  case,  it  was  necessary  to  make  a  repre- 
sentation to  the  judge  for  permission  to  have  their  power  trans- 
lated by  a  public  interpreter,  by  which  he  could  be  instracted 
\vith  the  nature  of  the  commission  and  according  to  law  exe- 
cute the  same.  That  had  they,  or  either  of  them,  being  charged 
simply  to  take  information  from  persons  acquainted  in  the  af- 
fairs, it  might  have  been  fully  and  satisfactorily  executed;  but 
to  have  an  oath,  prescribed  by  the  laws  of  a  court  in  a  foreign 
country,  to  be  administered  and  subscribed  to  by  a  person  in 
another,  was  a  thing  that  the  judge  of  that  place  did  not,  nor 
would  not  understand,  though  the  commissioners  explained  to 
him  the  nature  of  the  commission,  and  said  he  would  not  cite 
the  witnesses,  who  lived  at  a  distance,  except  it  was  notarially 
and  publicly  done,  &c.  The  plaintiffs  objected  to  the  admis- 
sion of  the  said  evidence;  and  insisted  that  the  said  depositions 
9u§ht  not  to  be  read  in  evidence.  And  the  Court 


OF  MARYLAND.  157 

CAPPZAC  v.  MIDDLETOX  &  BAKER. — 1827. 

Ch.  J.  and  Ward,  A.  J.]  were  of  opinion  that  the  said  depo- 
sitions ought  not  to  be  admitted  in  evidence.  The  defendant 
excepted;  and  the  verdict  and  judgment  being  against  him,  he 
appealed  to  this  court. 

The  cause  was  argued  at  the  last  June  term  before  BUCHA- 
NAN, Ch.  J.  and  MARTIN,  STEPHEN,  and  DORSEY,  J. 

Scott,  for  the  Appellant,  contended,  1.  That  it  did  not  ap- 
pear by  the  record,  that  a  writ  of  capias  ad  satisfaciendum 
against  Charles  Cappearu,  the  principal,  was  returned  non  est 
inventus  before  the  issuing  of  the  writ  of  scire  facias  against 
Joseph  Cqppeau,  his  special  bail.  2.  That  the  court  below 
erred  in  refusing  to  permit  the  evidence  contained  in  the  bill 
of  exceptions,  to  go  to  the  jury. 

1.  The  replication  to  the  second  plea  concludes  to  the  coun- 
try, instead  of  concluding  with  a  verification.      The  replica- 
tion does  not  state  that  a  ca.  sa.  had  been  issued,  and  was  re- 
turned non  est.     The  issue  joined  was  therefore  an  immaterial 
issue,  and  a  repleader  should  have  been  awarded.     He  cited  1 
JBac.  M.  tit.  Bail,  342,  343.      Filewood  vs.  Popplewell,  2 
Wils.  65.    Chandler  vs.  Roberts,  et  al.  bail  of  White,  1  Dougl. 
58.    Tidd's  Pr.  644,  645.   Henderson  vs.  Withy,  2  T.  B.  576. 

2.  The  testimony  returned  with  the  commission  should  have 
been  permitted  to  go  in  evidence.      1  Phill.  Evid.  272,  (note 
a,)  273.     Winthrop  vs.  Union  Insurance  Company.,  1  Con- 
fly's  Marsh.  707,  (note.) 

Finley,foT  the  Appellees.  On  the  first  point,  cited  Wil- 
liams vs.  Vaugh,  Cro.  Jac.  97.  1  Chitty's  Plead.  545,  (547.) 

On  the  second  point,  he  referred  to  the  act  of  1773,  ch.  7, 
S.  7.  1  Harr.  Ch.  Pr.  324,  326.  Rex  vs.  Croke,  1  Cowp.  26. 
J3oreing's  Lessee  vs.  Singery,  2  Harr.  Sf  Johns.  459.  As  to 
the  proof  of  foreign  laws,  and*  the  manner  of  executing  com- 
missions issued  to  foreign  countries  to  take  testimony,  he  cited 
Mostyn  vs.  Fabrigas,  1  Cowp.  174.  Church  vs.  Hubbarf,  2 
Crunch,  1 87,  236,  238.  Eaptiste  vs.  De  Voliinbrun,  5  Harr. 
4*  Johns.  98.  De  Sobry  vs.  De  Laistre,  2  Harr.  4*  Johns. 
229,  230.  Boreing's  Lessee  vs.  Singery,  Ib.  459.  Pancoast 
vs.  tftddison,  1  Harr.  fy  Johns.  350.  He  contended,  that  the 


158        CASES  IN  THE  COUNT  OP  APPEALS 

CAPPEAU  v.  MJODLKTON  &  BAKEX. — 1827. 

commissioners  could  not  delegate  their  powers,  nor  could  their 
powers  be  transferred  to  others — it  was  a  special  confidence  re- 
posed in  them.  Bailis  vs.  Cochran,  2  Johns.  Rep.  417. 

Curia  adv.  vulf. 

DORSET,  J.  at  this  term  delivered  the  opinion  of  the  court 
The  appellees  having  sued  out  a  scire  facias  against  the  ap- 
pellant, as  special  bail  of  Charles  Cappeau,  in  the  usual  form, 
without  setting  out  the  issuing  and  return  of  ca.  sa.  the  appel- 
lant pleaded  nul  tiel  record;  and  also  that  his  principal  died 
before  any  ca.  sa.  returned.  On  the  first  plea  an  issue  was 
joined,  and  judgment  given  thereon  by  the  court  against  the 
appellant.  The  appellees  in  their  replication  simply  trravers- 
ed  the  fact,  alleged  in  the  second  plea,  (without  setting  forth 
the  ca.  sa.  which  had  issued  and  been  returned,  the  time  when, 
&c.)  and  tendered  an  issue  to  the  country,  in  which  the  appel- 
lant joined.  The  verdict  and  judgment  being  rendered  against 
the  appellant,  he  seeks  a  reversal  by  this  court.  First.  On  the 
ground  that  the  appellees'  replication  to  the  second  plea  con- 
cludes to  the  country,  instead  of  concluding  with  a  verification, 
which  it  should  have  done.  If  this  objection  were  well  found- 
ed, it  cannot  avail  the  appellant  here;  his  remedy  should  have 
been  by  demurrer  in  the  court  below;  the  defect,  if  it  existed, 
is  cured  by  verdict.  But  there  is  no  such  defect  as  that  com- 
plained of.  The  replication  contains  no  new  matter,  which  the 
appellees  had  a  right  to  demand  an  opportunity  of  answering; 
but  is  a  direct  and  naked  denial  of  all  the  matters  contained  in. 
the  plea,  and  could  technically  conclude  in  no  other  way  than 
by  tendering  an  issue  to  the  country. 

The  second  ground  of  reversal  is,  that  this  replication  is  er- 
roneous in  not  setting  out  the  ca.  sa,  with  the  time  of  its  issu- 
ing and  return,  and  that  the  issue  joined  upon  it  is  an  immate- 
rial issue;  and  that  instead  of  a  final  judgment  upon  the  ver- 
dict, a  repleader  should  have  been  awarded.  That  surely  can- 
not be  an  immaterial  issue  which  decides  the  whole  matters  in 
controversy  between  the  parties.  Such  was  the  issue  to  which 
exceptions  are  now  taken.  The  issue  being  material,  no  judg- 
ment of  repleader  could  have  been  given.  Admitting,  that 
the  authority  of  the  case  of  Fortune  vs.  Manucaptors  of 


OF  MARYLAND.  159 


CAPI-KAU  v.   MIDDLE-TON  &  MAKER. — 1827. 


Davis,  Carth.  8,  recognised  by  Justice  fiuller  in  Chandler  vs. 
Roberts  and  another  bail  of  White,  1  DougL  58,  the  repli- 
cation ought  to  have  set  out  the  en.  sa.  and  return,  (although  a 
different  precedent  appears  in  2  Harr.  Ent.  472);  yet  the  omis- 
sion to  do  so,  in  the  present  case,  is  mere  informality  in  plead- 
ing, which  is  only  bad  on  demurrer.  But  if  it  be  matter  of 
substance,  it  is  remedied  by  the  verdict,  which  the  jury  could 
not  possibly  have  given,  unless  the  issuing  and  return  of  the 
ca.  sa.  had  been  in  evidence  before  them.  And  by  this  form 
of  the  issue,  the  rights  of  the  appellant,  though  somewhat  mo- 
dified, in  truth  sustain  no  diminution.  If  the  ca.  sa,  and  its 
return,  had  been  formally  stated  in  the  replication,  the  appel- 
lant might,  by  a  plea  of  nul  tiel  record,  have  put  their  verity 
to  issue  before  the  court.  He  accomplishes,  in  effect,  the  same 
object,  when  on  the  trial  he  objects  to  their  going  in  evidence 
to  the  jury.  The  question  presented  for  the  decision  of  the 
court,  becomes  in  both  cases  precisely  the  same. 

The  objections  to  the  pleadings  being  disposed  of,  it  only  re- 
mains to  be  inquired,  whether  the  court  erred  in  rejecting  the 
testimony  returned  with  the  commission?  We  think  they  did 
not.  The  power  conferred  on  a  commissioner  to  take  testimo- 
ny, is  strictly  personal,  and  on  its  faithful  execution  the  most 
important  interests  of  the  parties  may  depend.  To  ensure 
such  fidelity,  oaths,  to  be  taken  by  the  commissioner,  and  the 
person  by  him  to  be  employed  as  clerk,  are  annexed  to  the 
commission.  Especial  confidence  also  is  presumed  to  be  re- 
posed in  the  person  appointed.  Upon  no  principle  of  reason 
or  law,  therefore,  can  the  testimony  returned  with  the  commis- 
sion be  admissible.  The  person  by  whom  it  was  taken  held 
no  share  in  the  confidence  of  the  parties  or  of  the  court;  he 
received  from  them  no  delegation  of  authority;  and  even  if  he 
had,  having  failed  to  take  the  requisite  oath,  his  proceedings 
are  a  nullity.  For  this  singular  attempt  to  transfer  a  strictly 
personal  trust,  the  record  in  this  case  furnishes  neither  solution 
nor  apology. 

JUDGMENT  AFFIRMED,  (a.} 

(~aj  If  the  government  of  the  place  where  a  commission  has  issued  to 
take  testimony,  will  not  permit  it  to  he  executed,  the  court  here  will  issue 
Letters  Rogalory  for  the  purpose  of  ohtaining  testimony.  See  1  Peter's  C. 
C,  Reports,  236,  and  the  form  of  such  letters. 


160  CASES  IX  THE  COURT  OF  APPEALS 

CHASE  v.  GLENN — 1827. 

CHASE  vs.  GLENN, — June,  1827; 

An  appeal  does  not  lie  from  the  refusal  of  the  county  court,  on  the  motion' 
of  an  insolvent  debtor,  to  grant  a  rule  on  the  trustee  of  such  insolvent, 
who  had  given  the  usual  bond,  requiring  him  to  show  cause  why  his  ap- 
pointment should  not  be  revoked. 

APPEAL  from  Jlnne-Arundel  County  Court.  By  the  record 
it  appeared,  that  at  April  term  1822,  Samuel  Chase,  (the  ap- 
pellant,) exhibited  his  petition  to  Jlnne-JLrundel  county  court, 
praying  for  the  benefit  of  the  insolvent  laws,  stating  that  he- 
was  in  actual  confinement,  &c.  A  schedule  of  his  property, 
and  a  list  of  his  creditors,  on  oath,  accompanied  his  petition. 
The  petitioner  being  brought  before  the  court  by  the  sheriff, 
took  the  oath  required  by  law,  and  obtained  a  personal  discharge, 
and  was  ordered  to  appear  before  the  court  at  the  next  October 
term.  Reappeared  at  October  term  1822;  and  he  was  further 
ordered  to  appear  before  the  court  at  the  next  April  term.  At 
April  term  1823  he  again  appeared,  and  the  court  directed  that 
he  cause  notice  be  inserted  in  one  of  the  public  newspapers 
printed  in  Annapolis,  once  a  week  for  three  months,  before 
the  next  October  term,  notifying  his  creditors  to  appear  then 
before  the  court  for  the  purpose  of  recommending  a  trustee 
for  their  benefit,  and  to  show  cause,  if  anv,  why  the  said  Chase 
should  not  have  the  benefit  of  the  insolvent  laws.  At  an  ad- 
journment of  April  term,  held  in  June  1823,  certain  of  the 
creditors  of  Chase  filed  in  court  their  recommendation  in  writ- 
ing, of  EHas  Glenn,  (the  appellee,)  to  be  appointed  trustee 
ior  the  benefit  of  the  creditors  of  Chase.  Which  appointment 
the  court  accordingly  made;  and  ordered  Glenn,  the  trustee,  to* 
enler  into  bond  to  the  state  for  the  use  of  the  creditors  of  Chase, 
in  $50,000,  conditioned,  in  the  usual  form.  Which  bond 
Glenn  entered  into,  with  one  security,  on  the  23d  of  June 
1823.  At  October  term  1823,  Chase  moved  the  court  for  a 
rule  oft  Glenn  to  show  cause,  by  the  next  April  term,  if  any 
he  had,  why  his  appointment  should  not  be  set  aside  and  re- 
voked by  the  court.  At  April  term  1824  the  court  overruled 
this  motion.  From  which  decision  of  the  court  Chase  appeal- 
ed to  this  court. 

The  cause  came  on  for  argument  before  BUCHANAN,  Ch.  X 
and  MARTIN,  STEPHEN,  and  ARCHE.R,  J.  whea 


OF  MARYLAND.  Jftl 


TUIIXF.R  v    JKVKINS. — 1827. 


Meredith,  for  the  Appellee,  moved  the  court  to  dismiss  the 
appeal,  as  not  being  a  case  where  an  appeal  would  lie  to  this 
court. 

THE  COURT.  We  must  dismiss  the  appeal.  This  court  has 
no  jurisdiction  of  the  case. 

APPEAL  DISMISSED. 


J.  &  P.  TURNER  vs.  JENKINS,  et  al. — June,  1827. 

If  one  party  gives  in  evidence  a  part  of  a  conversation  between  the  other/ 
party  and  a  witness,  it  is  competent  for  such  other  party  to  extract  from 
the  witness  the  whole  of  that  conversation . 

A  declaration  which  contains  a  count  for  matters  and  articles  properly 
chargeable  in  account,  as  appears  by  a  particular  account  filed,  no  ac- 
count being1  filed;  and  another  count  for  special  services,  which  did  not 
state  an  assumption  of  any  particular  sum,  will  not  authorise  a  recovery. 

Where  the  pleadings  were  in  that  state,  and  the  evidence  contained  in  the 
bill  of  exceptions  showed  the  plaintiff  had  some  claim,  and  the  verdict 
and  judgment  being  for  him,  the  appellate  court,  on  reversing  the  judg- 
ment, awarded  a  prncedendo. 

APPEAL  from  Saint-Mary' 's  County  Court.  This  was  an 
action  of  assumpsit,  brought  by  the  appellees,  (the  plaintiffs 
below,)  against  the  appellants,  (the  defendants  below. )  The 
declaration  contained  two  counts.  1st.  An  indebitatus  as- 
sumpsit  count,  under  the  act  of  assembly  of  this  state,  for 
sundry  matters  and  articles  properly  chargeable  in  account,  to 
the  value  of  $200,  "as  per  account  filed,"  &c.  2d.  A  special 
count,  which  charged  for  the  carriage  and  transportation  of 
'•'divers  hogsheads  of  tobacco,"  belonging  to  the  defendants,  in 
the  vessels  of  the  plaintiff,  from  Port  Tobacco  in  C&zr/es  coun- 
ty, to  the  city  of  Baltimore,"  at  the  request  of  the  defen- 
dants; and  that  the  defendants  being  thereof  indebted,  in  con- 
sideration thereof  promised  to  pay  "the  last  aforesaid  sum  of 
jnoney"  on  request.  Nevertheless,  &c.  The  defendants  plead- 
ed non  assumpsit,  on  which  issue  was  joined.  No  account 
was  filed  in  the  cause. 

1.  At  the  trial  it  was  admitted  that  the  defendants  were  part- 
ners in  trade.  The  plaintiffs  then  produced  and  swore  Robert 

Tench,  a  competent  witness,  who  stated  that  in  the  year  1819, 
i.  21 


162  CASES  IN  THE  COURT  OP  APPEALS 

_f          i  -  -  -  -  - -     i 

TURNER  ».  JENKINS. — 1827. 

about  the  month  of  May  or  June,  when  the  tobacco  mentioned 
in  the  declaration  was  carried  from  Port-Tobacco  to  Balti*- 
more,  the  plaintiffs  were  joint  owners  of  the  schooner  Consort, 
the  vessel  that  carried  the  tobacco.  To  which  testimony  the 
defendants  by  their  counsel  objected.  But  the  Court,  [Key,  and 
Plater,  A.  J.]  were  of  opinion  that  the  same  was  legal  testi- 
mony, and  suffered  it  to  go  to  the  jury.  The  defendants  ex- 
cepted. 

2.  The  plaintiff  further  proved  by  the  said  witness,  that  he 
heard  Josiah  Turner,  one  of  the  defendants,  say  that  the  plain- 
tiffs carried  from  Port-Tobacco,  to  Baltimore,  the  tobacco  he 
purchased  from  Samuel  Chapman,  in  said  vessel,  in  the  year 
aforesaid;  and  that  Chapman  sold  to  the  defendants  forty-two" 
hogsheads  of  tobacco.     The  plaintiffs  then  produced  and  had 
sworn  Hugh  Cox,  a  competent  witness,  who  stated,  that  in  the 
year  1819,  the  freight  for  a  hogshead  of  tobacco  from  Port' 
Tobacco,  to  Baltimore,  was  two  dollars.     The  said  witness 
further  proved,  that  there  were  four  additional  hogsheads  of  to- 
bacco shipped  in  the  said  vessel  to  be  carried  to  Baltimore, 
from  Port-  Tobacco,  for  and  on  account  of  the  defendants,  at 
the  same  time.    The  defendants  then  offered  to  prove  by  Tench, 
that  he  heard  Lewis  «/#.  Jenkins,  one  of  the  plaintiffs,  say  that 
the  tobacco  was  damaged  on  board  of  said  vessel  in  the  trans- 
portation from  Port-Tobacco,  to  Baltimore.     And  further  of- 
fered to  prove,  by  said  witness,  that  at  the  time  one  ol  the  de- 
fendants, to  wit,  Josiah  Turner,  told  him  that  the  tobacco  he 
purchased  of  Samuel  Chapman,  was  shipped   to  Baltimore, 
by  the  plaintiffs,  in  said  vessel,  the  said  Josiah  Turner,   then 
said  that  the  said  tobacco  was  damaged;  but  does  not  recollect 
that  he  said  it  was  damaged  to  any  particular  amount,  or  that  it 
\vas  damaged  to  the  amount  of  the  freight.     To  the  admissibili- 
ty  of  which  testimony  the  plaintiffs  objected;  and  the  court 
•were  of  opinion  that  the  same  was  not  admissible,  and  refused 
to  permit  it  to  go  to  the  jury.     The  defendants  excepted. 

3.  The  defendants  then  prayed  the  court  to  instruct  the  jury, 
that  under  the  pleadings  in  the  cause,  the  plaintiffs  were  not  en- 
titled to  recover.     But  the  court  refused  to  give  the  instruction. 
The  defendants  excepted  j  and  the  whple  of  the  preceding  was 


OF  MARYLAND.  163 

TURNER  v.  JENKINS. — 1827. 

included  in  one  bill  of  exceptions.     The  verdict  and  judgment 
being  against  the  defendants,  they  appealed  to  this  court. 

The  cause  was  argued  before  BITCHAN\N,  Ch.  J.  and  EARLE* 
MARTIN,  STEPHEN,  ARCHER,  and  DORSET,  J.  by 

Magruder,  for  the  Appellants,  and  by 
C.  Dorsey,  for  the  Appellees. 

EARLE,  J.  delivered  the  opinion  of  the  court.  The  action 
in  this  case  was  brought  to  recover  freight  on  forty-six  hogs- 
heads of  tobacco,  transported  by  Jenkins  and  others,  the  plain- 
tiffs below,  for  the  defendants,  from  Port  Tobacco,  in  Charles 
county,  to  the  city  of  Baltimore.  The  declaration  contains 
two  counts.  One  count  for  certain  articles  properly  chargea- 
ble in  account,  as  appears  by  a  particular  account  exhibited; 
whereas  no  account  whatever  appears  in  the  record.  The 
other  count  is  an  indebitatus  assumpsit  for  freight  on  tobacco 
transported  from  Port  Tobacco,  in  Charles  county,  to  the  city 
of  Baltimore;  but  it  alleges  no  sum  in  which  the  defendants 
were  indebted  to  the  plaintiffs  for  this  service  rendered,  nei- 
ther does  it  state  the  assumption  by  them  to  pay  any  sum  ift 
particular  for  the  same.  To  this  declaration  the  defendants 
pleaded  non  assumpsit;  and  on  the  trial  they  tendered  a  bill 
of  exceptions,  which  was  signed  by  the  court.  In  this  bill  of 
exceptions  the  court  below  express  several  opinions,  in  one  of 
which  we  concur  with  them,  and  in  the  others  we  think  they 
were  clearly  wrong. 

The  statement  of  the  witness,  Tench,  that  the  plaintiffs  were 
the  joint  owners  of  the  schooner  Consort,  when  she  carried 
the  tobacco  to  Baltimore,  was  admissible  proof,  although  not 
very  satisfactory  testimony,  without  some  explanation  of  his 
knowledge  of  the  plaintiffs'  ownership,  if  it  was  a  point  desira- 
ble to  be  established  on  the  trial  of  such  an  issue.  The  same 
witness  ought  to  have  been  suffered  to  relate  what  he  had  heard 
one  of  the  plaintiffs,  Jenkins,  say  concerning  the  damage  of 
the  tobacco  in  its  passage  to  Baltimore,  as  well  as  the  whole 
conversation  he  held  with  Josiah  Turner,  one  of  the  defen- 
dants, on  the  same  subject,  whose  admission,  relative  to  the 
quantity  of  the  tobacco,  had  beeu  made  use  of  by  the  plaintiff 


164  CASES  IN  THE  COURT  OF  APPEALS 

GILES  v.  FERRYMAN. — 1827- 

We  are  also  of  opinion,  that  the  court  erred  in  refusing  to 
give  the  last  instruction  prayed  for  by  the  defendants. 

The  pleadings  in  the  cause,  on  behalf  of  the  plaintiffs,  are 
not  in  a  state  to  authorise  a  recovery,  however  just  their  de- 
mand may  be.  We  reverse  the  judgment  of  Saint  Mary's 
coynty  court,  and  return  them  the  cause  on  a  procedendo. 

JUDGMENT  REVERSED,  &C. 


GILES,  Adm'r.  of  BACON,  vs.  FERRYMAN. — June,  1827. 

Where  a  declaration  sets  forth  a  claim  or  demand  of  the  plaintiff  against 
the  intestate  of  the  defendant,  and  the  intestate's  promise  to  pay  it,  a 
reference  of  such  demand,  by  his  administrator,  (the  defendant,)  and 
the  plaintiff,  to  arbitrators — an  award,  in  pursuance  of  such  reference,  for 
»  specific  sum  in  favour  of  the  latter — a  promise  by  the  defendant,  as  ad- 
ministrator, to  pay  it,  and  charges  a  breach  in  the  nonpayment  of  that 
sum,  it  contains  matter  enough  to  warrant  a  judgment  against  the  de- 
fendant in  his  character  of  administrator.  The  plaintiff  is  under  no  ne- 
cessity to  aver  assets  in  the  hands  of  the  defendant,  as  administrator,  suf- 
ficient to  pay  his  debt. 

This  peculiar  mode  of  declaring  originated  in  a  plan  to  save  the  Statute  of 
.Limitations,  and  proceeds  upon  the  ground,  that  it  neither  pledges  the 
personal  responsibility  of  the  administrator  after  verdict,  nor  deprives 
Rim  of  any  defence  he  could  have  had,  if  he  had  been  charged  with  an 
assumpsit  by  his  intestate?  and  with  these  qualifications,  it  will  be  re- 
ceived and  adopted. 

An  administrator  who  relies  on  the  general  issue  plea,  after  verdict  and 
judgment  thereon,  has  admitted  assets  to  pay  the  amount  claimed  of  him. 

By  the  statutes  of  21  Jac.  I,  ch.  13;  5  Geo.  I,  ch.  13,  and  the  act  of  assem- 
bly of  1809,  ch.  153,  a  variance  between  the  writ  and  declaration  is  cur- 
ed after  verdict. 

No  form  of  words  is  necessary  to  be  used  in  an  averment  that  a  defendant 
is  administrator;  if  enough  is  said  to  amount  to  an  allegation,  that  the  de- 
fendant administered  on  the  estate  of  the  deceased,  it  will  suffice, 

A  declaration  vicious  on  account  of  an  averment  obscurely  made,  is  not 
such  a  fatal  objection  as  will  reverse  a  judgment. 

APPEAL  from  Baltimore  County  Court.  Action  of  assump* 
sit.  The  writ  was  against  the  defendant  (now  appellant,)  i» 
his  own  right.  The  declaration  contained  two  counts.  The 
Jirst  count  stated,  that  "a  certain  James  Bacon,  late  of  Balti- 
more county,  deceased,  on  whose  estate  the  defendant  hath  ad- 
ministered, some  time  before  his  death,  cut  down,  destroyed, 
and  took  away,  a  large  quantity  of  timber  from  off  the  land  of 
th&  plaintiff,  for  which  the  said  James  joeyer  paid  or  satisfied 


OP  MARYLAND.  165 


GILKS  v.   PKRRTMAN.-     18  7. 


the  plaintiff,  although  often  requested  so  to  do,  to  wit,  at  the 
county  aforesaid;  hut  always  promised  and  engaged  to  and  with 
the 'plaintiff,  that  he  would  pay  and  satisfy  him  for  the  same  tim- 
ber.    And  whereas,  after  the  death  of  the  said  James,  and  the 
administration  on  his  estate,  so  as  aforesaid  taken  out  by  the  de- 
fendant, he  the  plaintiff  and  defendant  agreed  to  leave  the  va- 
luation of  said  timber  to  a  certain  •Abraham  Jarrett  and  Wal- 
ter T.  Hall,  of  Harford  county  aforesaid,  he  the  defendant, 
agreeing  to  pay  to  the  plaintiff  whatever  sum  the  said  two  per- 
sons might  determine  and  award  the  said  timber  to  be  worth. 
And  the  said  Jarrett  and  Hall,  in  pursuance  of  said  agreement 
between  the  plaintiff  and  defendant,  afterwards,  to  wit,  on  the 
30th  day  of  July  in  the  year  1818,  at  Harford  county  afore- 
said; that  is  to  say,  at  Baltimore  county  aforesaid,  did  award 
and  determine  that  said  timber,  so  as  aforesaid  cut  down  and 
destroyed,  and  taken  away  by  said  James,  was  worth  the  sum 
of  $197,  and  made  out  a  written  award  to  that  effect;  of  which 
the  plaintiff  and  defendant  afterwards,  to  wit,  on  the  day  and 
year  last  aforesaid,  at  Baltimore  county  aforesaid,  had  notice. 
Whereupon  the  defendant  became  liable  to  pay  the  said  sum  of 
$197  to  the  plaintiff;  and  being  so  liable,  he  the  defendant,  as 
administrator  aforesaid,  in  consideration  thereof,  afterwards, 
to  wit,  on  the  same  day  and   year  last  aforesaid,  at  Baltimore 
county  aforesaid,  undertook  and   faithfully  to  the   plaintiff  did 
promise,   that   he  the   defendant,  as    administrator   of  said 
James  as  aforesaid,  would  well  and  truly  content  and  pay  the 
plaintff  the  said   sum  of  $197,  when  afterwards  he  should  be 
thereunto  requested."    The  second  count  was  upon  an  insimul 
computassent  between  the  plaintiff,   and  defendant  as  adminis- 
trator aforesaid,  of  divers  sums  of  money  due  and  owing  by 
the  defendant,  as  such  administrator,  to  the  plaintiff,  &c.      The 
defendant  demurred    to   the  declaration.      The  county  court 
overruled  the  demurrer  as  to  the  first  count  in  the  declaration, 
and  sustained  it  as  to  the  second  count.     The  defendant,  with 
the    leave   of  the  court,  then  pleaded  non  assumpsit  to  the 
Jirst  count,  and   issue  was  joined.      Verdict  for  the  plaintiff, 
and  judgment  against  the  defendant,  as  administrator  of  Bacon, 
si  non,  de  bonis  propriis  as  to  cosis.     The  defendant  appealed 
to  thii  court 


166       CASES  IN  THE  COURT  OF  APPEALS 

GILES  v.  PERRTMAN  — 1827. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
MARTIN,  STEPHEN,  and  DORSEY,  J. 

Scott  and  Meredith,  for  the  Appellant.  1.  The  declaration 
does  riot  pursue  the  writ,  and  the  judgment  is  against  the  de- 
fendant as  administrator.  2.  The  declaration  does  not  aver 
that  the  defendant  administered  upon  the  personal  estate  of  Ba~ 
con,  or  that  assets  came  to  his  hands.  3.  A  piomise  by  an  ex- 
ecutor or  administrator  to  pay  the  debts  of  the  deceased,  is 
nudum  pactitm,  unless  assets  came  to  his  hands. 

The  promise  from  the  defendant  to  the  plaintiff  is  without 
consideration;  and  the  verdict  is,  that  the  defendant  did  assume, 
&c.  There  was  no  sufficient  promise  to  justify  the  allegation 
in  the  declaration,  nor  any  finding  of  the  jury  sufficient  for  the 
judgment.  NewL  on  Cont.  79.  There  was  no  averment  that 
assets  came  to  the  hands  of  the  defendant  as  administrator,  suf- 
ficient to  enable  him  to  make  the  promise.  Mitchinson  vs. 
Hewson,  7  T.  R.  346,  (note.}  It  cannot  be  supplied  by  in- 
tendment  that  there  were  assets  in  the  defendant's  hands.  The 
submission  to  arbitration  is  not  an  admission  of  assets.  Pear- 
son vs.  Henry's,  ifldm'r.  5  T.  JR.  6. 

JR.  Johnson,  for  the  Appellee.  The  propriety  of  the  judg- 
ment below  is  questioned,  principally  on  two  grounds.  First. 
Because  the  promise  declared  upon  in  the  first  count  of  the 
declaration  is  without  consideration,  and  therefore  void;  and 
Secondly.  Because  if  it  be  a  valid  promise  at  all,  it  was  only 
so  far  valid  as  to  bind  the  appellant  jn  his  capacity  of  administra- 
tor, and  that  a  sufficiency  of  assets  in  his  hands  to  meet  the 
debt  should  have  been  averred.  Upon  the  first  of  these  grounds 
the  case  ot  Rannvs.  Hughes,  cited  in  7  T.  R.  346,  (note  a,} 
and  in  1  Com.  Cont.  49,  was  solely  relied  upon.  Adverting 
to  that  case,  it  will  be  found  to  have  been  an  action  brought  a- 
gainst  Hughes,  the  defendant,  as  administrator,  and,  that 
the  only  question  decided,  or  raised  at  the  argument,  was  whe- 
ther upon  the  declaration  there  was  sufficient  matter  to  autho- 
rise the  judgment  which  had  been  rendered  in  the  court  below, 
against  the  defendant  de  bonis  propriis?  There  was  ample 
matter  in  that  declaration  to  have  justified  a  judgment  against 
the  defendant  de  bonis  intestatoris.  The  case  turned  indeed 


OF  MARYLAND.  167 

GILES  v.    PERRTMAN. — 1827. 

wholly  on  the  true  construction  of  the  fourth  clause  of  the 
Statute  of  Frauds,  29  Car.  II.  ch.  3,  in  relation  to  agreement* 
binding  executors  or  administrators  personally  for  the  debts  of 
their  deceased  testators  or  intestates.  That  case  has  no  bear- 
ing upon  the  one  now  before  this  court.  The  question  here 
is  not,  at  any  rate,  whether  the  first  count  in  the  declaration 
contains  matter  sufficient  to  justify  a  judgment  against  the  ap- 
pellant in  his  individual  capacity,  but  whether  there  is  T^ 
matter  enough  in  it  to  warrant  a  judgment  against  him  in  his 
character  of  administrator,  and  of  this  can  there  be  a  doubt? 
A  debt  appears  by  the  declaration  to  have  been  due  by  the  ap- 
pellant's intestate.  He  is  charged  with  having  converted  to 
his  own  use  the  chattels  of  the  appellee,  and  to  have  promised 
payment  for  them  afterwards,  and  to  have  died  without  mak- 
ing the  payment.  The  appellant,  after  having  administered, 
and  the  value  of  the  property  thus  taken  by  his  intestate,  being 
unascertained,  leaves  the  valuation  of  it  to  arbitrators,  and 
agrees,  as  administrator,  to  pay  what  they  may  award;  they 
make  the  award  stated  in  the  count  in  question,  and  the  appel- 
lant is  charged  to  have  promised,  as  administrator,  to  pay  it. 
If  these  facts  do  not  bind  the  administrator,  as  in  his  charac- 
ter of  administrator,  and  authorise  a  judgment  against  him  in 
that  character,  it  would  be  difficult  to  imagine  a  case  in  which 
such  a  result  could  be  effected.  Sollers  vs.  Lawrence,  Willesy 
421. 

Upon  the  second  ground,  that  assets  should  have  been  aver- 
red, no  authoriiy  was  cited.  The  question  is  raised  after  a 
verdict  in  a  case  in  which  only  the  plea  of  non  assumpsit  was 
put  in.  A  want  of  assets  was  not  set  up  as  a  defence  below. 
The  court  will  find  this  point  settled  in  favour  of  the  appellee 
in  5  Com.  Bi%.  tit.  Pleader,  (2  D.  1,)  576,  cites  9  Coke,  24, 
(a;)  and  in  Elting  vs.  Vanderlyn,  4  Johns.  Rep.  237. 

It  is  said  also,  that  there  is  a  variance  between  the  writ  and 
declaration;  the  one  being  against  the  appellant  individually, 
the  other  as  administrator  of  Bacon.  The  answer  to  this  is 
two-fold.  First.  That  in  point  of  law  there  is  no  variance 
which  in  any  stage  could  be  taken  advantage  of;  and  Secondly. 
That  if  there  be  such  a  variance,  it  cannot  be  taken  advantage 
of  on  a  general  demurrer,  or  at  any  rate,  after  a  verdict  in  fa- 


168 


GILES  v-   PERHTMAX. — 1827. 


your  of  the  plaintiff.  1.  It  is  at  well  settled  principle,  that  a 
plaintiff,  in  his  declaration,  may  narrow  the  demand  he  makes 
of  the  defendant  by  his  writ.  1  Chitt.  PL  253.  2.  It  is  too 
late  to  take  advantage  of  it.  Duvall  vs.  Craig,  2  Wheat.  45. 
Vanderplank  vs.  Banks,  2  Wils.  85.  Hole  vs.  Finch,  Ib- 
,395,  and  our  act  of  1S09,  ch.  153. 

The  last  point  is,  that  the  declaration  does  not  aver  that  the 
•toellant  administered  upon  Bacon's  estate.  The  declaration 
expressly  states  that  he  did  administer  upon  Bacon's  estate, 
and  it  calls  him  throughout,  such  administrator.  This  way  of 
declaring  will  be  found  amply  sufficient  under  any  defence  which 
may  be  pleaded,  and  certainly  where  general  defence  only  is 
taken.  Holliday  vs.  Fletcher,  2  Ld.  Raym.  1510.  S.  C.  Stra< 
781.  Garland  vs.  Chattel,  12  Johns.  Rep.  430.  Barnes, 
159,  160.  5  Com.  Dig.  tit.  Pleader,  (2  D.  11,)  586,  and  Dean, 
Sfc.  of  Bristol  vs.  Guyse,  1  Saund.  112,  (note  2.) 

EARLEI,  J.  delivered  the  opinion  of  the  court  This  is  an 
appeal  in  an  action  of  assumpsit,  brought  by  Ferryman,  the 
appellee,  to  recover  a  debt  due  to  him  from  one  James  Bacon, 
on  whose  estate  Giles,  the  appellant,  administered.  The  writ 
issued  against  Giles  in  his  own  right,  the  declaration  counts 
on  a  promise  made  by  him  as  administrator  of  Bacon,  and  the 
judgment  is  against  him  de  bonis  testatoris.  The  second  count 
in  the  declaration  was,  on  demurrer,  disposed  of  by  the  court 
against  the  plaintiff,  and  makes  no  part  of  this  case.  To  the 
first  count  the  general  issue  was  pleaded,  and  a  verdict  render- 
ed against  Giles,  as  administrator,  for  the  debt  of  the  intestate. 
He  has  taken  this  appeal;  and  upon  his  objections  to  the  record, 
the  opinion  of  the  court  will  now  be  pronounced.  The  prin- 
cipal objections  are  to  the  declaration;  and  is  contended  that  it 
does  not  contain  matter  enough  to  warrant  a  judgment  against 
the  defendant  in  his  character  of  administrator;  and  that  it  is 
defective  in  not  averring  assets  in  his  hands  to  pay  Ihe  debt, 
wherewith  the  judgment  charges  him  as  administrator. 

The  declaration  sets  forth  a  debt  due  from  Bacon,  in  his  life- 
time, and  his  promise  to  pay  it;  it  sets  forth  also  a  reference  of 
this  demand  between  the  plaintiff,  and  the  defendant  as  admini- 
strator, to  persons  named  by  them,  who  rendered  an  award  for 


GF  MARYLAND*  169 

GILES  v.   PEHIITMAW. — 1827. 

Si  97,  clue  the  plaintiff,  which  sum  the  defendant,  as  administra- 
tor of  Bacon,  undertook  and  promised  to  pay,  and  it  charges  a 
breach  in  the  nonpayment  hy  the  defendant  of  this  sum.  This 
peculiar  manner  of  declaring  originated  in  a  plan  to  save  the 
statute  of  limitations,  is  according  to  the  approved  precedents 
of  Wentworth  and  Chitty,  and  has  the  authority  of  several 
respectable  judicial  decisions.  Secar  vs.  Atkinson,  1  H.  Blk. 
Hep.  102,  is  among  the  earliest  of  them.  In  that  case  the  de- 
claration contained  four  counts.  Three  upon  promises  made  by 
the  intestate,  and  the  fourth  stated,  that  the  plaintiff  accounted 
with  the  defendantj  as  administratrix,  of  and  concerning  divers 
sums  of  money,  &c.  owing  from  the  intestate  to  the  plaintiff, 
and  upon  that  account  the  intestate  was  found  in  arrear,  and  in- 
debted to  the  plaintiff,  &c.  and  being  so  found  in  arrear  and  in- 
debted, she,  as  administratrix,  in  consideration  thereof  pro- 
mised, &c.  Exception  was  taken  to  this  declaration  on  the  score 
of  misjoinder  in  action ;  and  it  was  urged,  that  the  first  counts, 
being  on  the  undertaking  of  the  intestate,  and  the  last  count  on 
that  of  the  administratrix  herself,  the  judgment  on  the  former 
must  bede  bonis  testa  torts,  and  on  the  latter  de  bonis  propriis. 
But  the  court  thought  otherwise,  and  distinctly  determined  that 
the  defendant  was  charged  in  all  the  counts  as  administratrix, 
and  that  the  judgment  on  all  the  counts  should  be  de  bonis  tes- 
tdtoris;  and  in  deciding  Secar  vs.  Mkinson,  the  (iase  of  flaiues 
vs.  Smith,  1  Vent.  268,  and  2  Lev.  122,  was  examined  by  the 
court,  and  declared  irreconcileable  with  any  true  principle  of 
the  law.  Whitaker  vs.  IVhitaker,  6  Johns.  Rep.  112,  is  a 
more  recent  authority,  giving  sanction  to  this  mode  of  declaring. 
Judge  Spencer,  who  delivered  the  court's  opinion,  not  only  ap- 
proves of  it,  but  he  states  that  the  same  defence  may  be  made 
to  it,  as  to  a  count  charging  the  promise  made  by  the  testator. 
Tn  this  case,  as  in  the  case  before  us,  there  is  but  a  single  count 
in  the  declaration,  and  it  simply  states  that  the  testator  was  in- 
debted to  the  plaintiff  for  money  lent  and  advanced;  and  being 
So  thereof  indebted,  the  defendant,  as  his  executor,  after  his 
death,  in  consideration  thereof,  upon  himself  assumed  to  pay, 
&c.  No  promise  by  the  testator  is  stated;  and  yet  it  had  the 
approbation  of  that  enlightened  court,  who  declared  it  a  valid 
declaiation,  and  that  the  proper  judgment  thereon  \\&$deboni$ 
VOL.  1  22 


170  OASES  IN  THE  COURT  OF  APPEALS 

GILES  v.  PERRTMAIT. — 1827. 

testatoris.  These  adjudications,  it  is  perceived,  go  upon  the 
grounds  that  this  mode  of  declaring  neither  pledges  the  per- 
sonal responsibility  of  the  administrator  after  verdict,  nor  de- 
prives him  of  any  defence  he  could  have  had,  if  he  had  been 
charged  with  an  assumpsit  by  his  intestate;  and  it  is  with  these 
qualifications  it  will  be  received  and  adopted  by  this  court. 
An4  the  debt  due  from  the  deceased,  being  the  consideration 
oi  the  promise  by  the  executor  or  administrator,  it  would  be 
advisable  at  all  times  to  state  it  clearly  and  plainly,  and  to  be 
prepared  to  support  it  by  competent  proof;  as  it  would  be  strict- 
ly to  observe  to  insert  the  words,  "as  executor,"  or  "as  ad- 
ministrator," after  the  promise  made  by  the  defendant  in  his 
representative  character. 

The  decisions  referred  to  upon  this  first  objection,  disposes 
of  the  second  made  by  the  defendant  to  the  plaintiff's  declara- 
tion. 

The  plaintiff  was  under  no  necessity  to  aver  assets  in  the 
hands  of  the  defendant,  sufficient  to  pay  his  debt  as  administra- 
tor. It  was  open  to  the  defendant  to  plead  plene  administra- 
vit,  or  any  other  plea,  going  to  show  a  defect  of  assets,  as 
much  as  it  would  have  been  in  an  ordinary  suit  against  him 
upon  the  promises  of  his  intestate;  and  if  this  defence  was 
within  his  power,  and  has  been  pretermitted  by  him,  he  is  only 
placed  in  the  situation  of  many  others,  who  have  defended 
themselves  on  wrong  and  mistaken  grounds.  The  general  is- 
sue plea,  he  has  chosen  to  use,  and  by  the  verdict  and  judg- 
ment thereon,  he  has  admitted  assets  to  pay  the  debt  claimed  of 
him. 

On  the  argument  of  this  cause,  other  objections  were  made 
to  the  record  by  the  defendant's  counsel,  upon  which  we  will 
also  offer  some  short  observations.  It  was  said  that  the  vari- 
ance between  the  writ  and  declaration  is  fatal,  and  ought  to  re- 
verse the  judgment;  and  that  the  omission  in  the  latter  to  aver, 
that  the  defendant  administered  on  Bacon's  estate,  is  also  a 
palpable  error. 

The  writ  is  against  the  defendant  in  his  own  right,  and  the 
declaration  charges  him  in  his  representative  character,  and 
there  is  certainly  a  seeming  variance,  if  he  is  in  time  to  take 
advantage  of  it.  This,  then,  is  the  question  presented  to  us> 


OF  MARYLAND.  171 


GILES  v.  PERHTMAN. — 1827. 


and  it  will  be  answered  by  a  recurrence  to  the  authorities. 
We  have  been  referred  to  Duvall  vs.  Craig,  2  Wheat.  45, 
where  the  Supreme  Court  of  the  United  States  say,  that  a  va- 
riance between  the  writ  and  declaration  cannot  be  taken  advan- 
tage of  on  general  demurrer,  but  must  be  pleaded  in  the  early 
stages  of  the  case,  in  abatement.  But  Serjeant  Williams,  in 
his  excellent  notes  on  Sounders,  (1  vol.  318,  note  3,)  holds  a 
different  doctrine.  He  .has  brought  together  all  the  adjudica- 
tions on  the  subject,  and  has  reasoned  himself  into  the  belief, 
that  no  advantage  whatever  can,  at  this  day,  be  had,  either  of  a 
defective  original,  or  of  a  variance  between  it  and  the  declara- 
tion. Be  this  as  it  may,  and  it  is  a  point  we  do  not  now  mean 
to  decide,  we  are  clearly  of  opinion,  that  the  appellant  has  lost 
the  opportunity,  if  he  had  one,  of  availing  himself  of  this  de- 
fect in  the  proceedings.  There  is  a  verdict  rendered  in  this 
case  for  the  appellee;  and  by  the  statutes  of  amendment  and 
Jeofails,  and  an  act  of  assembly  passed  in  1809,  ch.  153,  the'de- 
fect  mentioned  is  cured.  The  statutes  of  21  Jac.  I,  ch.  13,  and 
5  of  Geo.  I,  ch.  13,  particularly  point  to  a  variance  between  the 
writ  and  declaration,  and  by  their  provisions,  after  verdict,  the 
judgment  shall  not  be  reversed  in  any  court  of  record  for  such 
variance.  The  act  of  1809,  ch.  153,  is  also  explicit  on  this  sub- 
ject. 

The  further  point  in  this  case  is  readily  answered.  It  is  suf- 
ficiently averred  in  the  declaration,  that  the  defendant  adminis- 
tered on  Bacon's  estate.  No  form  of  words  is  necessary  to 
be  used  in  an  averment  of  this  kind.  If  enough  is  said  to 
amount  to  an  allegation,  that  the  defendant  administered  on  the 
estate  of  the  deceased,  it  will  suffice.  It  is  here  expressly  said 
that  he  did  so  administer;  and  if  the  defendant  had  been  so 
disposed,  he  might  have  pleaded  ne  unques  administrator, 
and  concluded  to  the  country,  which  only  can  be  done  where 
the  subject  matter  of  the  plea  is  a  denial  ot  an  affirmative  al- 
legation in  the  declaration.  If,  however,  the  declaration  could 
be  thought  vicious  on  account  of  making  this  averment  ob- 
scurely, surely  it  is  not  such  a  fatal  objection  to  it  as  will  re- 
verse the  judgment.  No  case,  authorising  such  a  conclusion, 
has  been  hinted  at,  and  certainly  the  court  have  no  knowledge 
of  such  an  authority^ 

JUDGMENT  AFFIRMED. 


172       CASES  IN  THE  COURT  OF  APPEALS 

FENWICK  v.   FIOYD. — 1827. 

FENWICK  vs.  FLOYD'S  Lessee. — June,  1827. 

There  must  be  such  a  description  of  the  land  claimed  in  an  action  of  eject- 
ment, as  will  enable  the  sheriff  to  deliver  possession  after  judgment. 

A  declaration  claiming  251  acres,  part  of  a  tract  of  land  called,  &c.  without 
any  description  of  the  part  claimed,  and  a  writ  of  possession  in  conformi- 
ty, are  both  defective. 

The  return  of  a  sheriff  to  a  writ  of  fi.  fa.  showing  a  levy  on  part  of  a  tract 
of  land,  without  any  description  of  such  part,  is  defective,  and  a  sale 
under  it  passes  no  title. 

In  an  ejectment  by  a  purchaser  under  a  sheriff's  sale,  against  the  debtor,  who 
refuses  to  give  up  the  possession  of  the  land,  it  is  incumbent  on  the  plain- 
tiff to  produce  the  judgment,  and  the  fieri  facias,  and  to  prove  the  sale 
of  the  land,  which  may  be  done,  either  by  a  deed  from  the  sheriff,  or  a 
return  of  the  fi.  fa.  They  are  sufficient  to  entitle  him  to  recover. 

In  the  absence  of  a  deed  from  the  sheriff,  and  his  return  to  the  execution,  a 
memorandum  in  writing  of  the  sale  must  be  produced,  to  take  the  case 
out  of  the  Statute  of  Frauds 

APPEAL  from  Saint-Mary's  County  Court.  Ejectment  "for 
all  that  tract  or  parcel  of  plantable  land,  being  part  of  a  tract 
of  land  called  Resurrection  Manor,  lying  and  being  in  the 
county  aforesaid,  containing  251  acres."  The  defendant,  (now 
appellant,)  pleaded  not  guilty,  and  issue  was  joined. 

At  the  trial  the  plaintiff  read  in  evidence  a  certificate  of  sur- 
vey of  Resurrection  Manor,  made  on  the  24th  of  March  1650, 
for  Thomas  Cornwallis,  containing  4000  acres;  also  the  re- 
cord of  a  judgment  rendered  in  Saint-Mary's  county  court 
in  March  1821,  in  an  action  brought  by  Floyd,  the  lessor  of 
the  plaintiff  below,  against  the  appellant;  and  also  of  a  fieri 
facias  issued  on  that  judgment,  and  the  sheriff's  return  there- 
on, viz.  "Laid  as  per  schedule,  and  sold  to  William  Floyd 
for  $616  30,  the  16th  of  January  1821."  The  schedule  re- 
ferred to  stated,  that  the  land  seized  under  the  fieri  facias,  was 
"Part  of  Resurrection  Manor,  containing  251  acres,  more 
or  less,"  and  appraised  to  $1000.  The  defendant  then  prayed 
the  court  to  instruct  the  jury,  that  the  plaintiff  was  not  entitled 
to  a  verdict.  But  the  Court,  \Key,  A.  J.]  was  of  opinion  that 
the  plaintiff  was  entitled  to  recover,  and  instructed  the  jury  to 
find  a  verdict  for  the  plaintiff.  The  defendant  excepted;  and 
the  verdict  and  judgment  being  against  him,  he  appealed  to 
this  court. 

The  cause  was  argued  at  the  last  June  term,  before  BUCHAN* 
AN,  Ch.  J.  and  EARLE,  MARTIN,  ABCHEB,  and  DORSE?,  J. 


OF  MARYLAND.  173 


FENWICK  v.  FLOTD.  — 1827. 


C.  Dorsey,  for  the  Appellant,  contended,  1.  That  the  cer- 
tificate of  survey,  offered  in  evidence,  was  not  sufficient  evi- 
dence that  the  p-  oprietary  had  parted  with  his  title,  without 
producing  a  grant  of  the  land.  2.  That  the  return  of  the  sheriff 
to  the  writ  of  fieri  facias,  was  void  for  uncertainty  in  the  de- 
scription of  the  land  sold.  On  the  first  point,  he  cited  Plum* 
mer  vs.  Lane,  4  Harr.  Sc  M'Hen.  72.  Hall  vs.  Gittings, 
1  Harr.  8?  Johns.  120.  .  On  the  second  point,  he  cited  Shep. 
Touch.  249.  3  Eac.db.389,  392.  4  Com.  Dig.  131.  1  Phill. 
Evid.  203.  Williamson  vs.  Perkins,  1  Harr.  4'  Johns.  449. 
Fitzhugh  vs.  Hellen,  3  Harr.  fy  Johns.  206.  Barney  vs.  Pat- 
terson, 6  Harr.  fy  Johns.  204. 

Cousin,  for  the  Appellee.  1.  Where  the  plaintiff  and  de- 
fendant claim  under  the  same  title,  it  was  unnecessary  to  offer 
a  grant  of  the  land  in  evidence.  He  cited  2  Phill.  Evid.  203. 
Ramsbottom  vs.  Buckhurst,  2  Maule  fy  Selw.  565.  2  Starkie's 
Evid.  521. 

2.  As  to  the  return  of  the  sheriff  to  the  fieri  facias,  and 
his  sale,  &c.  he  cited  Boreing  vs.  Lemmon,  5  Harr  8?  Johns. 
225.  Barney  vs.  Patterson,  6  Harr.  <§*  Johns.  204. 

Curia  adv.  vult. 

MARTIN,  J.  at  the  present  term,  delivered  the  opinion  of  the 
Court.  It  is  not  necessary  to  go  into  a  particular  examination 
of  the  several  alleged  errors  in  this  case,  for  the  proceedings 
are  erroneous  almost  from  the  commencement  to  the  termina- 
tion of  them. 

An  action  of  ejectment  is  a  remedy  given  to  the  party  to  ob- 
tain the  possession  of  lands  which  are  wrongfully  detained  from 
him,  and  as  the  sheriff,  after  judgment,  is  to  deliver  the  pos- 
session of  the  lands  recovered,  there  must  be  such  a  description 
of  them,  as  will  enable  him  to  effect  that  purpose. 

This  ejectment  was  instituted  to  recover  251  acres,  part  of  a 
large  tract  of  land  called  Resurrection  Maitor.  By  the  certi- 
ficate of  survey  it  appears,  that  tract  contains  4000  acres,  and 
by  the  judgment  in  this  case,  it  would  seem,  the  plaintiff  is  en- 
titled to  251  acres,  part  of  that  tract;  but  whether  that  part  ie 
to  be  located  on  the  north,  south,  east  or  west  side  of  the  whole 
tract,  is  left  in  perfect  uncertainty. 


174       CASES  IX  THE  COURT  OF  APPEALS 

FESWICK  v.  FLOTD. — 1827. 

The  declaration  claims  251  acres,  part  of  a  large  tract  of  land, 
without  any  description  of  the  part  claimed;  the  return  to  the 
Jieri  facias,  relied  on  as  evidence  of  title,  is  equally  defective; 
it  is  for  251  acres,  Part  of  Resurrection  Manor,  valued  at 
$1000,  without  any  metes  or  bounds,  or  other  description,  by 
which  its  location  could  be  established.  It  has  been  contended, 
ihat  this  ejectment  was  brought  to  recover,  not  a  part  of  the 
tract  called  Resurrection  Manor,  but  lor  a  whole  tract  that 
was  called  Part  of  Resurrection  Manor;  this  is  evidently  a 
mistake.  If  we  are  to  judge  of  the  plaintiff's  intention  by  his 
declaration,  it  is  clear  he  claimed  not  a  whole  tract,  but  only  a 
part.  He  describes  it,  not  as  a  tract  called  "part  of  a  tract," 
but  as  a  tract  of  plantable  land,  being  part  of  a  tract  called  Re- 
surrection Manor.  This  is  apparent  from  the  testimony  of- 
fered at  the  trial — the  certificate  of  survey,  not  of  a  tract  cal- 
led part  of  a  tract,  containing  251  acres,  but  of  Resurrection 
Manor,  containing  4000  acres;  and  it  must  be  conceded,  the 
certificate  of  one  tract  of  land  cannot  be  competent  evidence 
to  support  an  action  for  a  different  tract.  The  return  to  the 
Jieri  facias,  under  which  he  claims  title,  is^also  conclusive  up- 
on this  subject.  The  sheriff  sold,  not  a  whole  tract,  but  as  he 
expressly  states,  Part  of  Resurrection  Manor,  and  this  return. 
(if  the  lands  had  been  properly  described  in  it,)  could  be  only 
offered  as  evidence  of  title  to  such  lands  as  were  sold  by  him. 
If  a  writ  of  possession  had  been  issued  on  this  judgment,  what 
part  of  the  original  tract  could  the  sheriff  deliver  to  the  plain- 
tiff under  it?  He  must  deliver  251  acres,  but  neither  the  writ 
of  possession,  the  judgment,  the  return  to  the  fieri  facias, 
nor  any  other  part  of  the  proceedings,  would  enable  him  to 
make  a  location  of  them.  It  would  be  a  vain  and  nugatory 
command  that  could  not  be  executed. 

The  court  do  not  mean  to  intimate  that  it  was  necessary  in 
this  case  for  the  plaintiff  to  deduce  a  regular  title  from  the  pa- 
tentee. In  an  ejectment,  by  a  purchaser  under  a  sheriff's  sal», 
against  the  debtor,  who  refuses  to  give  up  the  possession  of  the 
land,  it  is  incumbent  on  the  plaintiff  to  produce  the  judgment, 
the  fieri  facias,  and  to  prove  the  sale  of  the  land,  which  may 
be  done  either  by  a  deed  from  the  sheriff,  or  a  return  to  the 
fieri  facias;  and  if  these  proceedings  are  correct,  they  are  suffi> 


OF  MARYLAND.  175 


BETTS  v.  USION  BANK  OF  MARYLAND. — 1827. 


cient  to  entitle  him  to  recover.  In  the  absence  of  a  deed  from 
the  sheriff,  and  his  return  to  the  execution)  a  memorandum,  in 
writing,  of  the  sale,  must  be  produced  to  take  the  case  out  of 
the  Statute  of  Frauds. 

JUDGMENT    REVERSED. 


BETTS,  et  ux.  vs.  THE-  UNION  BANK  OP  MARYLAND. — June, 

1827. 

Marriage  cannot  be  given  in  evidence  as  the  consideration  of  a  deed  of 
bargain  and  sale  expressed  to  be  made  for  a  money  consideration  only. 

The  greatest  extent  to  which  the  authorities  have  gone,  has  been  to  allow 
an  additional  consideration  to  be  proved,  which  is  not  repugnant  to  the 
one  mentioned  in  the  deed:  but  where  a  deed  is  impeached  for  fraud, 
the  party  to  whom  the  fraud  is  imputed,  will  not  be  permitted  to  prove 
any  other  consideration  in  support  of  the  instrument. 

Ante-nuptial  settlements,  made  in  consideration  of  marriage,  are  good,  even 
though  the  party  be  then  indebted. 

As  a  general  principle  of  the  law,  delivery  is  essential  to  the  legal  existence 
and  validity  of  a  deed;  but  our  legislative  enactment  declares  a  deed,  re- 
corded within  the  time  prescribed  by  law,  to  be  efficient  and  operative 
from  the  time  of  its  date. 

APPEAL  from  the  Court  of  Chancery.  The  complainants  in 
that  court,  (now  appellees,)  filed  their  bill  on  the  25th  of  Sep- 
tember 1820,  against  the  appellants,  and  Edward  Priestly,  in 
which  it  is  stated  that  on  the  24th  of  March  1819,  Setts,  (one  of 
the  defendants  and  appellants,)  being  indebted  to  the  complain- 
ants in  the  sum  of  $1700,  upon  two  promissory  notes,  one  for 
$700,  dated  the  22d  of  February,  and  the  other  for  $1000, 
dated  the  25th  of  February  then  last  passed,  payable  60  days 
after  their  respective  dates,  both  of  which  notes  were  drawn  by 
Priestly,  one  other  of  the  defendants,  in  favour  of  Setts,  and 
by  him  endorsed,  and  discounted  by  the  complainant  lor  the 
sole  use  and  accommodation  of  Betts,  at  their  banking-house, 
in  consideration  that  the  complainants  had  agreed  to  extend  the 
accommodation  of  the  said  notes  for  the  term  of  three  years 
from  the  24th  of  March  1819;  and  to  accept  of  a  security  oa 
the  property  of  Betts  in  lieu  of  Priestly's  name  and  respon- 
sibility; and  for  the  purpose  of  more  effectually  securing  the 
payment  of  the  said  sum  of  money,  and  interest  thereon, 
-Betts  made  and  executed  a  deed  of  mortgage  or  trust,  dated 


176  CASES  IN  THE  COUAT  OF  APPEALS 

BETTS  v.  UNIOST  BANK  or  MARYLAND. — 1827. 

the  24th  of  March  1819,  and  thereby  conveyed  to  the  com- 
plainants, and  their  assigns,  all  that  lot  of  ground  in  the  city  of 
Baltimore,  No.  Ill,  being  part  of  a  tract  of  land  called  TodcPs 
Range,  &c.  with  a  proviso  that  the  said  conveyance  should  be 
void  in  case  Betts,  his  heirs,  &c.  should,  before  the  expirali- 
on  of  the  term  of  three  years  from  the  date  thereof,  pay  to 
the  complainants  the  said  sum  of  money,  &c.  But  if  default 
should  be  made  by  Betts,  then  the  conveyance  was  declared  to 
have  been  made  in  trust;  arid  the  complainants  might  after  no- 
tice, sell  the  said  lot  of  ground^  &c.  to  satisfy  and  pay  the  said 
debt  of  $1700,  or  so  much  as  should  remain  due,  and  should  in 
the  meantime  rerietv  the  said  notes  at  the  end  of  every  60 
days,  and  pay  the  regular  interest  or  discount  upon  the  same, 
&c.  The  bill  further  states,  that  a  short  time  previous  to  the 
execution  of  the  said  mortgage  to  the  complainants,  Betts  call- 
ed on  Beale  Spurrier,  a  conveyancer,  and  requested  him  to 
draw  a  deed  of  a  lot  of  ground  which  belonged  to  him,  Betts, 
and  on  which  his  dwelling-house  stood,  (being  the  same  lot  of 
ground  herein  before  referred  to,)  and  to  leave  blanks  for  the 
name  of  the  grantee,  and  the  amount  of  consideration.  That 
on  the  17th  of  March  18l9,  Betts  called  again  on  Spurrierf 
and  requested  the  blanks  to  be  filled  up,  and  the  name  of  Eli- 
zabeth Ball  inserted  as  grantee,  which  having  been  done,  he 
executed  the  conveyance,  and  requested  Spurrier  to  let  the 
transaction  remain  private,  stating  that  he  was  about  to  be  mar- 
ried to  the  said  Ball;  that  she  was  young,  and  he  had  thought 
proper  to  make  this  provision  for  her  without  her  knowledge. 
That  some  days  afterwards  Spurrier  was  requested  by  Priest- 
ly and  Betts,  (but  at  different  times,)  to  prepare  some  securi- 
ties on  the  property  of  Betts,  to  the  complainants,  for  a  debt 
due  to  them;  but  upon  discovering  that  a  part  of  the  property 
offered  to  be  mortgaged  was  the  same  that  had  been  a  few  days 
before  conveyed  to  E.  Ball,  Spurrier  observed  to  Betts  that 
before  he  could  consent  to  be  privy  to  the  execution  of  the 
mortgage,  he  must  be  satisfied  that  the  previous  conveyance  to 
E.  Ball  had  been  cancelled,  or  else  he  must  communicate  its 
existence  to  the  parties  interested.  Betts  replied  that  it  should 
be  cancelled,  that  he  had  it  in  his  possession,  and  that  E.  Ball 
had  no  knowledge  of  it.  He  then  brought  the  deed  to  Spur- 


OF  MARYLAND.  177 


BETTS  v.  UNION  BA.NK  OF  MARYLAND. — 1827. 


Tier  and  left  it  with  him.     That  Spurrier,  in  pursuance  of  di- 
rections given  to  him  by  Priestly  and  Betts,   prepared  two 
several  deeds  of  mortgage  or  trust — one  on  a  parcel  of  ground 
belonging  to  Betts,  on  the  south  side  of  Queen-street,  for  the 
sum  of  §4000;  and  a  second  on  the  lot  herein  before  mention- 
ed, on  the  N.  side  of  said  street,  being  the  same  conveyed  to 
E.  Ball  for  $1700.     Bet  is  then  requested  Spurrier  to  prepare 
a  deed  from  him  to  E,  Ball  for  his  reversionary  interest  or 
equity  of  redemption  in  the  lot  to  be  mortgaged  for  $1700. 
Which  deeds  having  been  prepared,  were  executed  by  Betts  on 
the  24th  of  March  1819.     It  was  then  mentioned  by  Spurrier, 
that  the  first  deed  to  Miss  Ball  should  be  destroyed.     Betts 
repeated  that  she  had  no  knowledge  of  it;  that  he  wished  to  re- 
tain possession  of  it,  in  order  that  he  might  have  it  recorded  in. 
preference  to  the  second  one,  in  the  event  of  his  being  able  in 
the  course  of  six  months  (upon  which  he  confidently  calculated,) 
to  discharge  the  bank's  lien,  as  in  that  case  he  wished  his  in- 
tended wife  to  have  the  benefit  of  the  first  conveyance;  and 
pledged  his  honour  that  it  should  not  be  used  unless  his  expec- 
tations to  pay  should  be  realized;  and  that  he  would  request  the 
bank  to  withhold  the  mortgage  from  record  until  six  months 
should  be  nearly  expired.     In  consequence  of  which  said  de- 
clarations and  pledges  made  by  Betts,  Spurrier  permitted  him, 
to  take  and  retain  the  first  deed  to  Miss  Ball,  and  so  far  con- 
fided in  his  veracity  and  honour  as  to  keep  the  complainants  in 
ignorance  of  its  existence,  and  of  the  circumstances  herein  re- 
lated.    The  bill  then  charges,  that  Betts  not  regarding  his  said 
several  promises  and  undertakings  to  Spurrier,  but  fraudulent- 
ly intending  to  injure  and  deceive  the  complainants,  lodged  in 
the  office  of  record  the  first  deed  to  Miss  Ball,   with  whom, 
either  immediately  before  or  shortly  afterwards  he  intermarried. 
That  the  said  notes  have  both  become  due  and  remain  unpaid, 
Betts  having  totally  neglected  and  refused  to  pay  or  to  renew 
the  same,  and  pay  the  regular  and  usual  interest,  &c.  although 
ofteu  demanded  by  the  complainants,  still  refuses  to  renew  the 
said  notes,  and  pay  the  said  discount,  &c.  as  is  provided  by  the 
deed  of  mortgage.     Prayer,  that  the  deed  to  Miss  Ball,  (now 
Mrs.  Betts,)  may  be  utterly  rescinded,  annulled  and  set  aside; 
and  that  the  mortgaged  premises  may  be  sold  for  the  payment 
VOL.    1  23 


1TB  CASES  IN  THE  COURT  OP  APPEALS 

BETTS  v.  UNION  BANK  OF  MARYLAND. — 1827. 

of  the  sum  of  money  in  the  said  mortgage  deed  mentioned, 
Sac.  and  for  further  relief,  &c. 

The  answers  of  Betts,  and  Elizabeth  his  wife,  admit  the 
debt  due  to  the  complainants,  and  the  deed  of  mortgage  to 
them  as  stated  in  the  bill,  but  they  insist  that  the  term  of  cre- 
dit given  and  allowed  by  the  said  deed  had  not  expired,  and 
that  the  complainants  were  not  entitled  to  ask  for  a  foreclosure 
of  the  same.     The  answer  admits  that  Spurrier  was  request- 
ed by  Betts,  a  short  time  before  the  deed  of  mortgage  to  the 
complainants,  to  prepare  a  deed  for  the  purpose  of  conveying 
the  lot  of  ground  which  is  mentioned  in  the  said  mortgage 
deed,  and  to  leave  the  name  of  the  grantee,  and  the  considera 
tion  in  blank,  and  that  afterwards  Betts  called  on  Spurrier,  and 
desired  him  to  insert  the  name  of  E.  Ball,  now  the  defendant 
E.  T&etts,  as  the  grantee  in  the  said  deed.     But  l&etts  utterly 
denies  that  he  requested  Spurrier  to  keep  the  said  transaction 
a  secret,  or  told  him  that  as  E.  Ball  was  young  he  had  thought 
proper  to  make  such  a  provision  for  her  without  her  know- 
ledge, or  that  any  conversation  of  that  nature  ever  occurred  be- 
tween ~Betts  and  Spurrier.     The  defendants  aver,  that  the  said 
deed,  executed  and  delivered  by  Betts  to  E.  Ba//,  (his  now 
wife,)  was  executed  and  delivered  to  her  with  her  full  know- 
ledge, approbation  and  consent,  and  in  consequence  of  an  agree- 
ment previously  entered  into  by  her  and  Betts  upon  the  eve  of 
their  marriage,  for  a  marriage  settlement  for  her,  which  agree- 
ment wa«  made  in  February  or  the  beginning  of  March  1819, 
and  in  consequence  of  which  agreement  the  said  deed  to  E. 
JBall  was  executed  by  Betts.     He  denies  that  Spurrier  told 
him  it  would  be  necessary  he  Spurrier,  should  be  satisfied 
that  the  previous  deed  made  to  E.  Ball  had  been  cancelled,  or 
else  he  would  communicate  the  same  to  the  parties;  and  he  also 
denies  that  he  promised  the  said  deed  should  be  cancelled,  or 
that  he  had  the  deed  in  his  possession,  and  that  E.  Ball  had  no 
knowledge  of  it,  or  that  any  conversation  of  such  a  nature  oc- 
curred.    The  defendants  aver  that  the  said  deed  was  executed 
and  delivered  anterior  to  the  execution  of  the  deed  for  the 
same  property  to  the  complainants.     They  deny  that  Betts  left 
the  said  deed  with  Spurrier  with  the  knowledge  or  consent  of 
E.  Ball    They  admit  that  Betts  executed  the  two  mortgages 


OF  MARYLAND. 


BBTTS  v.  UNION  BANK  OF  MAHTLAKD. — 1827. 


referred  to  in  the  bill,  to  the  complainants.  Setts  denies  that 
he  ever  pledged  his  honour,  or  promised  Spurrier  not  to  make 
use  of  the  deed  to  E.  Ball;  and  Elizabeth  avers,  that  she  does 
not  believe  he  did,  &c.  and  ii  he  did,  it  cannot  bind  her,  or  af- 
fect her  rights,  where  the  same  was  done  without  her  know- 
ledge or  consent.  They  aver  that  Elizabeth  refused  to  marry 
Setts  until  the  said  deed  from  him  to  her  was  regularly  execut- 
ed. 

The  answer  of  Priestly  admitted,  and  confessed  all  the  mat- 
ters and  facts  stated  in  the  bill  of  complaint  to  be  true  as  there 
stated,  and  that  he  believed  the  conveyance  to  E.  Betts,  the 
wife  of  Belts  and  co-defendant  in  this  cause,  was  made  for  the 
fraudulent  purposes  alleged  in  the  said  bill. 

Exhibit — By  the  complainants — a  deed  of  mortgage  from  E. 
Betts  to  complainants,  dated  the  24th  of  March  1819,  for  the 
lot  of  ground,  to  secure  the  payment  of  the  money  in  the  man- 
ner mentioned  in  the  bill  of  complaint,  which  mortgage  was 
recorded  on  the  27th  of  April  1819.  The  exhibit  by  the  de- 
fendants— a  deed  from  Enoch  Betts  to  Elizabeth  Ball,  dated 
the  17th  of  March  1819,  whereby  the  former  "for  and  in  con- 
sideration oi  the  sum  of  four  thousand  dollars  lawful  money  of 
the  United  States,  to  the  said  Enoch  Betts  in  hand  well  and 
truly  paid  by  the  said  Elizabeth  Ball)  at  and  before  the  seal- 
ing and  delivery  of  these  presents,  the  receipt  whereof  the  said 
Enoch  Betts  doth  hereby  acknowledge,"  &c.  the  said  Betts 
granted  and  conveyed  to  the  said  E.  Ball  a  lot  of  ground  in 
the  city  of  Baltimore,  No.  Ill,  &c.  This  deed  was  recorded 
on  the  9th  of  August  1819. 

A  commission  issued,  and  testimony  was  taken  thereunder. 
That  of  Beale  Spurrier  was  very  similar  to  that  stated  in  the 
bill,  with  other  additional  evidence  of  what  took  place  between 
him  and  Betts  at  a  subsequent  period,  on  having  called  oa 
Betts  at  the  instance  of  Priestly.  The  testimony  of  Walter 
Ball  is,  that  Elizabeth  Betts  is  his  sister.  That  previous  to 
her  marriage,  he  called  on  Betts  to  know  whether  he  had  con- 
veyed to  the  deponent's  sister  a  sufficiency  of  property  to  make 
her  independent  of  his  children,  as  he  had  promised  to  do. 
He  told  the  deponent  he  had  got  the  deed,  and  gave  it  to  the 
deponent,  and  said  here  is  what  I  have  given  your  sister,  an<| 


180  CASES  IN  THE  COURT  01J  APPEALS 

BETTB  v.  UNION  BANK  OF  MARYLAND. — 1827. 

requested  the  deponent  to  take  it  and  read  it,  and  said  at  the  - 
same  time,  he  thought  it  was  sufficient  to  make  her  comforta- 
ble. After  deponent  had  read  the  deed  he  replied,  he  thought 
it  was.  The  deed  was  at  that  time  executed  and  acknowledged 
by  'Betts.  He  informed  his  sister  of  the  contents  of  the  deed 
before  her  marriage,  which  appeared  to  be  satisfactory  to  her. 
J$etts  was  an  elderly  man,  with  a  family  of  four  children.  E. 
"Ball  was  a  young  woman.  It  was  at  the  request  of  E. 
the  deponent  went  to  examine  the  deed  given  to  her  by 
The  testimony  of  William  B  all  is,  that  Elizabeth  T&etts  is 
his  daughter;  that  E.  "Betts  addressed  her,  and  he  consented  to 
the  marriage,  provided  "Betts  would  make  her  independent  of 
IBett's  children;  and  that  a  few  days  before  the  marriage  he 
met  l&etts,  and  had  a  conversation  with  him,  and  'Betts  men- 
tioned to  the  deponent  that  he  was  clear  with  Mr.  Priestly, 
and  that  he  was  then  prepared  to  place  the  deponent's  daughter 
in  the  situation  which  he  had  promised.  ~Betts  had  given  de~ 
ponent  to  understand  that  he  was  an  independent  man,  though 
not  a  rich  one,  and  that  he  was  in  a  situation  to  make  the  de- 
ponent's daughter  independent  of  his  children.  Sarah  ~Ball 
deposed,  that  Elizabeth  Setts  is  her  daughter.  That  Enoch 
T&etts  did  make  the  deed  to  her  daughter;  that  the  deed  was 
ehown  to,  and  read  by,  the  deponent,  it  having  been  executed 
and  acknowledged  by  l&etts;  this  was  previous  to  the  marriage* 
That  at  the  time  of  showing  the  deed,  "Betts  observed,  that  it 
would  be  sufficient  to  keep  her  daughter  from  want,  to  which 
the  deponent  replied  yes.  That  it  was  with  the  approbation  of 
her  daughter  that  the  deed  was  examined  and  read  by  the  de-- 
ponent.  The  deponent  was  determined  in  her  mind  that  JSetts 
should  not  have  her  daughter  without  he  gave  her  a  sufficiency 
to  keep  her  from  want  in  case  of  his  death.  When  he  asked 
the  deponent  for  her  daughter,  she  observed  to  him  that  he  was 
a  great  deal  older  than  her  daughter  was;  that  he  might  die 
first,  and  leave  her  with  a  rising  generation;  and  then  asked 
him  what  was  to  become  of  her  and  her  children — to  be  de- 
pending on  his  children  for  her  support?  The  deponent  intimat- 
ed to  him  that  he  ought  to  give  her  something  independent  of 
his  children.  He  then  replied  he  would.  She  then  left  him, 
and  told  her  daughter  that  Mr.  "Belts  intended  to  make  her  in^ 


OP  MARYLAND.  181 


BETTS  ».  UNION  BANK  OF  MARYLAND. — 1827. 


dependent  of  his  children  if  she  was  willing  to  have  him.  Six 
or  seven  days  before  the  marriage,  the  deponent  went  and  ask- 
ed him  whether  he  had  done  that  business?  He  said  he  had; 
with  that  he  got  the  deed  and  showed  it  to  her,  and  she  read 
it,  and  then  he  said  he  thought  it  was  sufficient.  The  depo- 
nent replied  yes.  She  went  home  and  informed  her  daughter 
of  it.  That  the  marriage  took  place  on  the  25th  of  March 
1819.  Other  similar  testimony  was  taken  and  returned  under 
the  commission,  but  which  is  unnecessary  to  be  stated, 

JOHNSON,  Chancellor,  (July  term  1822.)  The  object  of  the 
bill  is  to  vacate  a  deed,  on  the  ground  of  fraud,  executed  by 
Enoch  Belts  to  Elizabeth  Bally  with  whom  he  afterwards  in- 
termarried, and  to  obtain  a  decree  for  the  sale  of  the  property 
under  a  mortgage  obtained  from  Belts  to  the  Union  BanA;,  to 
secure  the  payment  of  a  sum  of  money  due  from  him  to  the 
bank,  and  for  which  Edward  Priestly,  the  other  defendant, 
was  responsible  to  the  bank. 

On  the  24th  of  March  1819,  the  mortgage  was  executed  to 
secure  the  pa}rment  of  the  sum  of  $1700.  The  debt  arose  on 
two  notes  amounting  to  that  sum,  which  had  been  discounted 
at  the  bank;  and  three  years  were  to  be  allowed  for  the  pay- 
ment of  the  principal  debt,  provided  Betts  regularly  renewed 
the  notes  during  that  period,  and  paid  the  discounts.  The  bill, 
(which  was  filed  on  the  25th  of  September  1820,  before  the 
three  years  had  elapsed,)  alleges  that  Betts  had  not  renewed 
the  notes  when  due.  The  mortgage  was  recorded  on  the  27th 
<>f  April  following  the  date. 

The  bill  states,  that  a  short  time  previous  to  the  execution  of 
the  mortgage,  Be//*  called  on  a  conveyancer,  and  requested 
him  to  draw  a  deed,  (for  the  same  property  included  in  the 
mortgage,)  and  leave  the  name  of  the  grantee,  and  the  conside- 
ration, blank.  On  the  17th  of  March  1819,  he,  Betts,  waited 
on  the  conveyancer,  and  requested  the  blank  to  be  filled  up 
with  the  name  of  Elizabeth  Ball,  as  the  grantee,  which  was 
done,  and  the  deed  on  that  day  executed. 

The  same  conveyancer  was  afterwards,  at  different  times,  re* 
quested  by  Priestly  and  "Betts  to  prepare  some  securities  on 
the  property  of  Betts  to  secure  the  debt  to  the  Union  Bank} 


182  CASES  IN  THE  COURT  OF  APPEALS 

BETTS  v.  UNION  BANK  OF  MARYLAND. — 1827. 

that  on  discovering  that  part  of  the  property,  designed  to  be 
mortgaged,  was  the  same  comprehended  in  the  deed  to  Eliza- 
beth Bally  the  conveyancer,  (Beetle  Spurrier,)  informed 
Betts  that  the  first  deed,  (the  execution  whereof  Spurrier  had 
by  Betts  been  requested  to  keep  secret,)  must  be  cancelled,  or 
he  (Spurrier,)  must  inform  those  interested  with  the  circum- 
stances. Betts,  who  then  had  the  deed  in  his  possession,  said 
it  should  be  cancelled,  declaring  that  E.  Ball  had  no  know- 
ledge of  it;  and  the  deed  was  left  with  Spurrier.  The  mort- 
gages were  prepared,  and  a  deed  written  at  the  instance  of 
Setts,  to  convey  his  equity  of  redemption  in  the  same  proper- 
ty before  conveyed  to  E.  Ball,  as  a  substitution  for  the  first 
deed,  observing,  he  thought  it  would  be  in  his  power  to  re- 
deem the  mortgages.  The  mortgages  and  the  last  deed  were 
then  executed.  Betts  was  again  informed  by  Spurrier  that 
the  deed  of  the  17th  of  March  (the  first  deed  to  E  Ball,} 
must  be  destroyed,  when  Betts  replied  he  wished  to  keep  it,  as 
he  expected  to  pay  the  debt  in  the  course  of  six  months;  that 
he  would  request  the  bank  not  to  have  the  mortgages  recorded 
until  the  time  for  recording  had  nearly  expired;  and  that  he 
preferred  recording  the  first  to  the  second  deed  to  E.  "Ball, 
and  pledged  his  honour  to  Spurrier  not  to  use  the  first  deed 
except  the  mortgage  was  discharged ;  on  which  Spurrier  per- 
mitted him  to  take  and  retain  the  first  deed.  Not  regarding 
his  promises,  but  as  the  bill  charges,  fraudulently  intending  to 
injure  and  deceive,  the  first  deed  was  lodged  for  record  imme- 
diately .before  or  shortly  after  Betts  married  Elizabeth  Ball. 
The  answer  of  Betts  admits  the  request  to  have  the  deed 
prepared  with  the  blanks,  and  when  drawn,  at  his  request,  the 
name  of  Elizabeth  Ball  was  inserted  as  the  grantee;  but  he 
denies  all  the  allegations  in  respect  to  keeping  the  transaction 
a  secret,  or  that  he  had  thought  proper  to  make  a  provision  for 
E.  Ball,  whom  he  was  about  to  marry,  or  that  any  conversation 
passed  between  him  and  Spurrier  of  the  nature  that  is  set  forth 
in  the  bill.  And  his  wife,  by  her  answer,  believes  what  her 
husband  states  is  true.  Both  of  them  aver  that  the  deed  was 
executed  in  consequence  of  an  agreement  previously  entered 
into  between  them  on  tr  e  eve  of  marriage,  for  a  marriage  set- 
tlement; that  the  agreement  was  made  ia  the  month  of  Februa- 


OF  MARYLAND.  183 


BETTS  v.  Ujnosr  BAXK  UP  MARYLAND. — 1827. 


ry,  or  the  beginning  of  March  1819.  Enoch  Belts  denies 
every  thing  that  is  alleged  about  the  promise  to  cancel;  and 
denies  that  the  deed,  with  the  knowledge  of  Elizabeth,  was 
left  with  Spurrier;  and  avers  that  the  deed  of  the  17th  of 
March  was  executed  and  delivered  anterior  to  the  mortgage. 

The  only  consideration  of  the  deed  of  the  17th  of  March,  is 
the  payment  of  the  sum  of  $4000,  the  receipt  of  which  is  ac- 
knowledged. This  deed  was  recorded  on  the  9th  of  August 
following  its  date. 

This  cause  has  been  argued  partly  in  writing  and  in  part  ver- 
bally, and  every  attention  has  been  given  to  the  grounds  occu- 
pied by  each  in  maintenance  of  the  side  each  espoused;  and  all 
the  evidence  and  circumstances  of  the  case,  as  well  as  all  the 
authorities  relied  on,  maturely  considered.  Several  questions 
arise  in  the  cause. 

First.  Was  the  deed  to  Elizabeth  Ball,  in  point  of  fact, 
first  duly  executed? 

Second.  If  first  executed,  is  it  available  against  the  com- 
plainants? and  as  the  consideration  contained  in  the  deed  was 
not  paid,  can  any  other  be  set  up  in  its  support? 

Third.  Supposing  it  competent  to  give,  in  support  of  the 
deed,  evidence  of  a  consideration  other  than  the  one  contained 
therein,  is  there  evidence  of  such  a  consideration  for  its  execu- 
tion as  can  prevail  against  the  complainants? 

1.  On  the  first  question.  It  will  be  perceived,  on  an  atten- 
tive examination  of  the  bill,  and  the  answer  of  Enoch  Betts, 
that  the  allegations,  that  at  the  time  the  mortgage  was  executed, 
the  first  deed  was  in  the  possession  of  Spurrier,  is  not  denied 
by  the  answer.  The  answer  denies  that  he,  "Enoch,  left  the 
said  deed  with  the  said  Spurrier  with  the  knowledge  or  con- 
sent of  the  said  Elizabeth."  All  of  which  is  consistent  with 
the  bill;  for  so  far  from  alleging  that  E.  Ball  ever  consented 
to  the  deed  being  carried  to  and  left  with  Spurrier,  she  is  de- 
clared to  be  ignorant  of  its  existence.  What  is  contained  in 
the  bill  on  this  subject  is  not  denied;  but  the  denial  applies  to 
what  is  not  charged,  and  is  therefore  foreign  from  the  matter  in 
contest. 

The  evidence  of  Spurrier  is  explicit  on  this  subject.  He 
swears  that  Betts  brought  to  and  left  with  him,  the  deed,  which 


184  CASES  IN  THE  COURT  OP  APPEALS 

BETTS  v.   UNION  BANK  OF  MARYLAND. — 1827. 

after  the  three  other  deeds  were  executed,  on  the  solemn  pro- 
mise of  Betts  not  to  use  it  but  on  the  event  of  the  discharge 
of  the  mortgage,  he  (Spurrier)  permitted  Betis  to  retain  the- 
possession  of  the  deed.  That  is,  he  returned  the  deed  to  him, 
and  permitted  him  to  keep  it,  only  to  be  used  on  the  event 
taking  place  that  had  been  mentioned. 

If  the  evidence  of  Spurrier  is  true,  of  which  I  entertain  not 
the  most  slight  doubt,  then  in  point  of  fact,  the  deed  of  the  17th. 
of  March  (if  it  may  be  denominated  a  deed)  was  not  delivered 
to  E.  Ball,  or  to  any  other  person  for  her  use,  when  the  mort- 
gage of  the  24th  of  March  was  executed.  The  delivery,  and  not 
the  date,  is  the  essential  part.  The  instrument  of  writing  may 
be  a  deed  without  date,  but  no  deed  can  exist  without  delivery; 
until  then  the  act  is  as  incomplete  as  a  paper  purporting  to  be 
a  last  will  and  testament  before  the  death  of  the  maker. 

But  it  has  correctly  been  remarked  by  the  counsel  for  Mrs. 
Hefts,  that  no  act  of  her  husband  can  invalidate  her  deed;  that 
•nee  executed,  it  is  free  from  his  control.  This  position,  true 
in  itself,  before  it  can  be  brought  to  bear  on  the  cause,  requires 
that  the  instrument  in  question  must  first  be  established  to  be 
a  deed.  Surely,  if  from  the  time  it  was  executed,  to  the  24th 
of  March,  it  had  been  in  the  exclusive  possession  of  Betts,  and 
was  then  delivered  up,  in  order  to  give  effect  to  other  deeds 
then  executed,  it  never  could  be  brought,  by  relation  to  its  date, 
to  control  and  defeat  them.  Is  there  any  evidence  of  the  de- 
livery either  to  E.  Ball,  or  to  any  other  person  for  her? 

Her  mother,  S.  Ball,  proves  that  "the  deed  was  shown  to 
and  read  by  her."  By  whom  was  it  shown?  Not  by  E.  Ballr 
or  any  person  to  whom  it  was  delivered,  but  by  Betts  himself, 
then  in  possession  of  it,  as  manifestly  appears  by  the  whole  of 
her  evidence  taken  together. 

Walter  Ball,  her  brother,  proves  that  previous  to  the  mar- 
riage he  called  on  Betts,  who  said  he  had  "got  the  deed,  and 
gave  it  to  the  deponent,  and  said  here  is  what  I  have  given  your 
sister,  and  requested  deponent  to  take  it  and  read  it,  and  said 
at  the  same  time,  he  thought  it  was  sufficient  to  make  her  com- 
fortable. After  deponent  had  read  the  deed,  he  replied,  he 
thought  it  was."  The  deed,  as  is  evident  from  the  whole  of 
fcis  evidence,  was  then  returned  to  Betts;  for  in  his  answer  to 


OF  MARYLAND.  185 


BETTS  v.  UNIOST  BANK  os  MAHTLANB. — 1827. 


the  fourth  interrogatory  on  the  part  of  the  defendants,  he  says 
"he  informed  his  sister,  Elizabeth  Ball,  of  the  contents  of  the 
deed  before  her  marriage."  She  would  not  have  been  inform- 
ed of  the  contents  of  the  deed,  if  her  brother  then  held  it;  she 
would  either  have  read  it  herself,  or  had  it  read  to  her. 

These  are  the  only  witnesses  in  the  cause  on  whom  any  re- 
liance can  be  placed  to  establish  a  delivery  of  the  deed  of  the 
1 7th  of  March,  to  have  been  made  prior  to  the  mortgage.  All 
the  witnesses,  it  is  true,  in  speaking  of  the  instrument  of  writing 
of  the  17th  of  March,  call  it  a  deed,  as  is  also  done  in  this  de- 
cree; but  if  it  was  not  accompanied  with  all  the  solemnities  ne- 
cessary to  constitute  it  such,  the  appellation  of  deed  will  not 
make  it  one. 

It  may  fairly  be  inferred,  it  never  was  the  intention  of  Beits 
to  give  it  the  binding  efficacy  of  a  deed,  before  the  solemniza- 
tion of  marriage;  for  as  the  consideration  was  money,  and  as 
he  denies  all  that  is  stated  by  Spurrier  in  respect  to  the  mar- 
riage, had  he  parted  with  the  paper,  the  title  to  his  property, 
certainly  as  between  him  and  E.  Ball,  would  have  been  trans- 
ferred to  her,  and  would  have  vested  in  her,  although  she  af- 
terwards refused  to  marry  him;  and  whether  it  ever  could  have 
been  recovered  back  is  problematical. 

To  constitute  a  deed,  delivery  of  some  kind  must  be  proved. 
To  a  third  person  for  the  grantee  is  sufficient;  but  the  casuai 
placing  it  in  the  hands  of  a  third  person,  with  the  view  to  let 
him  read  it,  and  then  return  it,  will  no  more  amount  to  a  de- 
livery, than  if  the  grantor  had  retained  in  his  own  hands  the 
paper,  and  there  permitted  it  to  be  read.  No  case  has  been 
produced,  nor  have  I  been  able  to  find  one,  by  which,  on  the 
evidence  as  here  disclosed,  the  paper  of  the  17th  of  March 
can  be  established  a  deed  to  overreach  the  mortgage  of  the  24th 
of  the  same  month  to  the  complainants. 

The  execution  of  the  deed,  it  has  been  contended,  is  not 
called  in  question  by  the  bill,  and  therefore  need  not  be  proved. 
The  bill,  it  is  true,  calls  the  instrument  a  deed;  but  it  shows 
that  when  the  mortgage  was  executed,  it  was  not  in  the  posses- 
sion of  the  grantee,  directly  or  indirectly;  and  if  a  delivery  iff 
necessary  for  its  validity  as  a  deed,  and  there  was  none,  its  ex- 
ecution cannot  correctly  be  said  to  be  admitted.  But  ijf  th* 
YOt.  i.  24 


186  CASES  ifr  THE' COURT  OF  APPEALS 

BETTS  v.  UNIOW  BANK  OF  MARYLAND. — 1827. 

opinion  given  on  the  first  question  is  not  tenable,  the  second 
arises. 

2.  Can  evidence  of  a  consideration,  other  than  that  contain- 
ed in  the  deed  be  received  to  support  it?  This  entirely  de- 
pends on  law,  and  might  properly  be  referred  to  a  court  of  law, 
but  having  expressed  an  opinion  on  the  first  point,  which,  if 
correct,  ends  the  cause,  I  shall,  without  the  assistance  of  a  court 
of  law,  determine  the  other  point. 

It  is  well  established  as  a  general  rule,  "that  parol  evidence 
cannot  be  admitted  to  contradict,  add  to  or  vary,  the  terms  of 
a  will,  deed,  or  other  instrument  of  writing."  For,  to  use  the 
language  of  Lord  Coke,  "it  would  be  inconvenient  that  matters 
in  writing,  made  by  advice  and  on  consideration,  and  which 
finally  import  the  certain  truth  of  the  agreement  of  the  parties, 
should  be  controlled  by  an  averment  of  parties  to  be  proved  by 
the  uncertain  testimony  of  slippery  memory;  and  it  would  be 
dangerous  to  purchasers,  and  all  others,  in  such  cases,  if  nude 
-averments  against  matter  in  writing  should  be  admitted.'* 
Countess  of  Rutland's  case,  5  Coke,  26. 

But  although  the  rule,  as  a  general  one,  is  not  controverted, 
and  its  applicability  to  prevent  different  uses  and  trusts  from 
being  raised,  than  are  contained  in  the  instrument,  or  to  vary 
ihe  condition  of  a  bond;  yet  a  difference  in  respect  to  the  ad- 
mission of  parol  evidence  is  alleged  in  regard  to  the  considera- 
tion of  the  instrument  itself.  Parol  evidence  cannot  vary  the 
uses,  &c.  but  parol  evidence  may  be  received  to  establish  a 
deed  by  the  proof  of  another  consideration,  consistent  with 
the  nature  of  the  consideration  contained  in  the  deed  or  instru- 
ment. And,  as  is  argued  on  behalf  of  the  deed,  marriage,  as 
well  as  money, is  in  contemplation  of  law, and  in  reality  a  valua- 
ble consideration.  Therefore,  if  it  appears  that  the  deed  was 
executed  in  consequence  of  a  previous  marriage  agreement,  it 
must  be  supported. 

It  will  be  found,  on  an  examination  of  the  authorities,  that 
in  some  instances  you  may  give  evidence  of  a  consideration  in 
addition  to  that  stated  in  the  deed,  if  the  additional  considera- 
tion is  of  the  same  nature.  But  such  evidence  is  not  ad- 
missible in  every  instance.  Nor  has  any  case  presented  itself 
in  my  researches,  which,  on  this  occasion,  have  not  been  slight* 


OF  MARYLAND.  1ST 


BETTS  v.  UNION  BANK  OP  MARYLAND. — 1827. 


where  a  deed  has  ever  heen  supported  by  the  proof  of  a  con- 
sideration consistent  with  the  nature  of  that  in  the  deed,  ex- 
cept where  the  consideration  in  the  deed,  as  well  as  the  one 
proved  in  addition,  was  also  true. 

With  what  propriety,  it  may  be  asked,  can  it  be  said,  when 
the  deed  purports  to  convey  property  in  consideration  of  $4000 
paid,  that  you  can  be  permitted  to  prove  that  a  marriage  con- 
tract, and  not  the  money,  was  the  inducement  or  consideration 
for  the  conveyance,  and  at  the  same  time  contend  that  such 
proof  is  consistent  with  the  deed?  They  are  as  variant  as  north 
from  south.  If  the  $4000  had  been  paid  for  property  worth 
$20,000,  the  inadequacy  of  price  might  of  itself  induce  the 
belief  that  the  deed  was  improperly  obtained.  But  to  support 
the  deed,  the  real  consideration,  as  set  forth  in  the  deed  being 
true,  parol  proof  of  an  additional  consideration  consistent  with 
its  nature — such  as  marriage,  might  be  let  in.  For  as  the 
$4000  were  in  part  the  real  consideration,  the  superadding 
another  consistent  consideration,  the  books  say,  is  no  variance. 
But  it  is  believed  no  book  has  gone  so  far  as  to  establish  a  deed 
by  another  consideration  alone,  than  the  one  expressed  in  the 
deed.  "Where  a  deed  is  impeached  for  fraud,  the  party  charged 
will  not  be  allowed  to  prove  any  other  consideration  in  support 
of  the  instrument."  1  Phillip's  Rvid.  426.  Clarkson  vs.  Han- 
way,  2  P.  Wms.  203.  But  "the  party  which  complains  of 
the  fraud  may  prove  any  consideration,  however  contrary  to 
the  averment  of  the  deed,  to  show  the  fraudulent  nature  of  the 
transaction."  For  there  is  no  danger,  say  the  books,  that  the 
introduction  of  such  proof  would  introduce  uncertainty  or 
fraud,  "but,  that  fraud  would  be  assisted  by  its  exclusion,  the 
whole  object  of  the  evidence  being  to  expose  and  defeat  a  se- 
cret fraud."  1  Phill.  Evid.  424  to  428,  and  the  cases  there 
referred  to.  1  Fonbl.  202. 

As,  in  this  case,  there  is  not  the  least  foundation  to  suppose 
the  $4000,  the  alleged  consideration  of  the  deed,  ever  were 
paid,  the  evidence  going  to  establish  another  consideration  is 
clearly  inadmissible* 

The  decision  of  the  court  of  appeals  in  Jones  vs.  Slubey,  5 
Karr.  Sf  Johns.  372,  bears  strongly  on  this  cause. 

3.  If  the  evidence  of  the  consideration  set  up  in  support  of 


18S       CASES  IN  THft  COURT  OF  APPEALS- 

BETTS  v.  USION  BANK  OF  MARYLAND. — 1827. 

the  deed  was  admissible,  could  such  a  consideration  support  the 
deed? 

Enoch  Betts,  being  largely  indebted,  wishes  to  marry.  He 
is  an  old  man,  with  a  number  of  children;  forms  an  attachment 
for  a  young  lady,  who  it  would  seem  would  not  marry  him. 
\vithout  obtaining  something  to  make  her  independent  of  his 
children.  This  he  promises  to  do;  and  this  appears  to  me  td 
be  the  substance  of  what  is  now  termed  a  marriage  contract, 
Now  let  us  suppose  this  promise  was  made,  which  I  do  not 
question  was  the  case,  and  she  had  been  informed  by  Setts  he 
had  secured  to  her  what  would  make  her  independent  of  his 
children,  and  relying  on  this  information  she  married  him,  and 
then  discovered  n6  such  establishment  had  been  made,  could  a 
bill  be  supported  in  chancery?  Where  is  that  certainty  which 
all  contracts  demand?  What,  it  might  be  asked,  was  he  to  con- 
vey? What  and  how  much  would  make  her  so  independent? 
If  a  bill  could  not  be  supported,  supposing  no  paper  to  have 
been  signed,  how  coqld  a  claim  be  maintained  on  such  a  pro- 
mise, supposing  the  paper  to  have  been  signed,  so  as  to  obtain 
it  from  him  as  a  completion  of  these  engagements?  It  seems 
to  me  a  dangerous  principle  to  permit  a  man,  involved  in  debt, 
by  making  a  promise  to  settle  his  property  on  the  woman  he 
intended  to  marry,  to  do  so,  to  the  ruin  of  his  creditors.  On 
these  subjects  I  express  no  opinion,  except  I  do  not  think  the 
public  good  would  be  promoted  by  the  encouragement  of  mar* 
riages  on  such  conditions. 

That  the  complainants  may  obtain  the  relief  they  appear  just- 
ly entitled  to — Decreed,  that  unless  the  defendants  shall,  on  or 
before,  &c.  pay,  or  cause  to  be  paid>  to  the  complainants,  the 
sum  of  $700,  with  legal  interest  on  the  same  from  the  25th  ot 
April  1819,  and  the  further  sum  of  $  1000,  with  interest  as 
aforesaid,  from  the  28th  of  April  1819,  until  paid,  together 
with  the  costs  of  this  suit,  the  property  in  the  deed  of  mortgage 
filed  iU  this  cause  be  sold,  or  such  part  as  will  be  sufficient  to 
discharge  the  said  sums.  And  in  order  to  make  the  said  sale, 
on  failure  to  pay — Decreed,  that  R.  J.  be  and  he  is  hereby  ap- 
pointed trustee,  &c.  From  this  decree  Betts  and  Wife  ap- 
pealed to  this  court 


OF  MARYLAND.  189 

BETTS  v.  UNION  BANK  OF  MARYLAND. — 1827. 

The  cause  was  argued  at  June  term  1824,  before  BUCHANAN, 
Ch.  J.  and  EARLE,  MARTIN,  STEPHEN,  and  ARCHER,  J. 

J.  Glenn,  for  the.  Appellants,  contended, 

1.  Under  the  circumstances  of  this  case  the  appellees  had  no 
right  to  come  into  a  court  of  equity  to  ask  relief. 

2.  The  deed  to  the  appellant,  Elizabeth,  was  duly  executed 
for  a  valuable  consideration  previous  to  the  deed  to  the  appel- 
lees. 

3.  Parol  evidence  is  admissible  to  support  the  deed. 

The  appellants  have  the  superior  legal  title,  and  the  superior 
equity.     The  act  of  1766,  ch.  14,5.  5,  fixes  the  time  when  the 
deed  enured  to  the  benefit  of  Mrs.  Belts.     It  took  effect  from 
its  date,  and  gave  the  legal  title  to  her  before  the  mortgage  to 
the  appellees.     The  deed  was  delivered  before  the  mortgagej. 
and  it  was  made  in  consideration  of  marriage.     Any  act  amount- 
ing to  a  delivery  is  sufficient  to  constitute  a  delivery  of  a  deed. 
The  consideration  was  marriage,   and  that  is  a  valuable  con- 
sideration.   2  Blk.  Com.  297.     Sugd.  465,  and  the  cases  there 
cited.      Verplankvs.  S terry,  12  Johns.  Rep.  546.      A  subse- 
quent marriage  validates  a  voluntary  deed  as  against  creditors. 
There  was  a  good  delivery  of  the  deed.     Shclton's  case,  Cro. 
Eliz.  7.     13  Vin.  M.  (K.)  23,  pi.  12.     Souverbye  vs.  rfrden, 
1  Johns.  Ch.  Rep.  255.    2  Rollers  rfb.  24,  1.  28,  45.    4  Com. 
Dig.  tit.  Fait,  (A.  3,)  158.     There  must  be  fraud  to  defeat  the 
prior  deed.     Evans  vs.  Bicknell,  6  Vea.  189,  191.     Berry  vs. 
Mutual  Insurance  Company,  2  Johns.  Ch.  Rep.  609.     The 
consideration  was  $4000,  as  expressed  in  the  deed,  and  it  is  in 
proof  that  the  consideration  was  marriage,   arid  not  a  money 
consideration.     Where  there  is  a  valuable  consideration  ex- 
pressed, another  valuable  consideration  may  be  averred  where 
there  has  been  no  fraud.      Villers  vs.  Beamont,  2  Dyer,  146. 
JMildmaye's  case,  1  Coke,  176.  Lord  Cromwel's  case,  2  Coke* 
76.       Vernorfs  case,  4  Coke,  3.      Peacock  vs.  Monk,  1  Ves. 
128.       The  King  vs.  Inhabitants  of  Scammonden,  3  T.  R. 
474.      The  King  vs.  Inhabitants  of  Laindon,  8  T.  JR.  373. 
Sugd.  87.      Funds' 8  Max.  No.  2.      1  Fonbl.  13$.      The  ap- 
pellees had  notice  of  the  deed,  and  they  must  take  subject  to 
that  deed.     The  conveyancer  was  the  agent  of  the  appellees. 


190  CASES  IN  THE  COURT  OP  APPEALS 

BETTS  v.  Vsios  BANK  OF  MARTIANIJ. — 1827. 

Le  Neve  vs.  Le  Neve.,  3  Jltk.  646,     If  there  is  a  defect  in  the 
deed  to  Mrs.  Betts,  equity  will  make  it  good.     1  Madd.  41. 

R.  Johnson,  for  the  Appellees.  1.  There  was  no  notice  to  the 
agent.  The  conveyancer  was  as  much  the  agent  of  Mrs.  Betts 
as  of  the  appellees.  He  knew  that  Betts  was  indebted  to  the 
appellees.  If  Mrs.  Betts.  through  the  agent,  knew  that  fact, 
was  the  deed  to  her  an  effectual  conveyance  under  such  circum- 
stances? It  would  have  been  a  fraud  on  her  in  taking  the  deed. 
Was  there  a  delivery  of  the  deed?  It  is  the  delivery  that 
makes  it  the  deed  of  the  party.  2  Blk.  Com.  307.  A  deed 
takes  effect  from  its  delivery.  When  was  this  deed  delivered? 
There  is  no  pretence  that  it  was  delivered  to  Mrs.  Betts,  or 
that  she  ever  saw  it.  It  was  to  be  the  deed  of  Betts  when  the 
marriage  took  effect.  The  deed  was  not  left  as  in  Shel ton's  case, 
Cro.  Eliz.  1,  but  Betts  put  the  deed  in  his  pocket,  and  took 
it  away  with  him  after  he  had  executed  it.  There  is  no  evi- 
dence to  show  that  there  was  any  delivery.  The  grantor  took 
the  deed  to  the  clerk's  office  to  be  recorded,  and  it  was  then,  and 
not  before,  legally  delivered.  The  act  of  1766,  ch.  14,  s.  5, 
in  speaking  of  the  date  of  the  deed,  means  from  the  time  of 
the  delivery.  The  day  of  the  date  is  the  day  of  the  delivery, 
Jackson  vs.  Bard,  4  Johns.  Rep.  230. 

2.  Can  parol  evidence  be  received  to  prove  a  different  con- 
sideration than  that  stated  in  the  deed?  The  chancellor  in  his 
decree  has  correctly  laid  down  the  rule.  The  consideration  of 
marriage,  is  not  of  the  same  nature  as  that  in  the  deed.  If  the 
parol  evidence  is  to  admit  that  the  consideration  was  marriage, 
and  not  money,  it  would  be  to  change  the  consideration  wholly 
from  that  stated  in  the  deed.  2  Blk.  Com.  338.  What  the 
deed  is,  and  what  it  will  be  if  the  evidence  is  admitted — Where 
it  is  a  money  consideration,  then  it  is  a  bargain  and  sale — If 
marriage,  then  the  nature  of  the  deed  will  be-  changed  into  a 
covenant  to  stand  seized  to  us%s.  Can  such  a  doctrine  as  this 
fee  admitted?  A  deed  of  bargain  and  sale  has  certain  requisites 
peculiar  to  itself,  which  the  evidence  would  have  the  effect  to 
change  and  wholly  defeat.  Independent  of  the  Statute  of 
Frauds,  the  evidence  could  not  be  admissible.  The  cases  cited 
by  the  appellants'  counsel,  are  where,  there  is  a  pecuniary  con« 


OF  MARYLAND,  191 


BETTS  ».  UMION  BANK  OP  MARYLAND. — 1827- 


sideration,  and  other  pecuniary  consideration  is  proved;  but 
none  of  them  go  to  say  you  can  change  the  consideration,  and 
substitute  another  in  its  place,  although  they  both  be  valuable 
considerations.  1  Phill.  Evid.  426,  (483.)  Belts  executed  the 
deed  with  a  fraudulent  design,  and  the  consideration  stated  ia 
the  deed  was  not  paid.  If  the  evidence  is  admitted,  then  the 
fraud  will  be  consummated.  Clarkson  vs.  flanway,  2  P. 
TVms.2Q3.  Watt  vs.  Grove,  2  Sch.  #•  Lef.  501.  Jones  vs. 
Slubey,  5  Harr.  Sf  Johns.  372.  2  Com.  Dig.  tit.  Bargain  £• 
Sale,  (B  10,)  64. 

Taney,  in  reply.  The  deed,  under  which  the  appellants 
claim,  purports,  on  the  face  of  it,  to  be  made  for  a  money  con- 
sideration only.  It  appears  by  the  answer  and  evidence,  that 
no  money  was  in  fact  paid,  and  that  the  deed  was  in  truth  made 
in  consideration  of  marriage  only,  and  that  the  marriage  took 
effect.  If  the  deed  was  made  without  consideration,  or  was 
merely  voluntary,  it  is  fraudulent  and  void  against  the  appel- 
lees, who  were  creditors  at  the  time.  The  consideration  men- 
tioned in  the  deed  is  admitted  not  to  have  been  paid.  It  is, 
therefore,  fraudulent  and  void,  unless  some  other  valuable  con- 
sideration can  be  proved.  And  the  question  is,  can  the  appel- 
lants be  permitted  to  prove  the  consideration  of  marriage,  upon 
which,  in  truth,  the  deed  was  made?  If  by  the  rules  of  equity 
they  are  permitted  to  offer  such  evidence,  then  the  deed  is  not 
fraudulent,  but  is  a  good  deed  for  a  valuable  consideration — 
that  is,  in  consideration  of  marriage.  It  is  insisted  that  the 
evidence  is  admissible. 

1.  The  general  rule  is,  "that  although  a  particular  conside- 
ration is  mentioned  in  the  deed,  yet  an  averment  may  be  made 
of  another  consideration  which  stands  with  the  consideration 
expressed,  and  is  not  repugnant  to  it."  The  rule  is  stated  in 
the  words  of  Ld.  Coke,  as  repeatedly  recognized  in  his  reports. 
Mildmaye's  case,  1  Coke,  176.  Lord  Cromwell's  case,  2 
Coke,  76.  demon's  case,  4  Coke,  3.  Bedel's  case,  7  Coke* 
40.  In  all  of  these  cases,  Villars  vs.  Beamont,  2  Dyer,  146,  is 
relied  on  as  the  leading  case,  and  is  recognized  as  authority. 
The  same  rule  is  recognized  in  Sitg.  Vend.  97,  98,  (ed.  1820,) 
'and  in  Phil  Evid.  425,  &c.  The  rule  in  Sugden  is,  "that 


192  CASES  IN  THE  COURT  OP  APPEALS 

BETTS  v.   UNIOM  BANK  OF  MAHYIAND, — 1827. 

parol  evidence  may  be  given  of  collateral  and  independent 
facts,  which  tend  to  support  the  deed,"  provided  it  is  not  of- 
fered to  vary  the  agreement,  and  is  consistent  with  the  deed. 

2.  The  case  at  bar  is  in  all  respects  within  the  words  and 
spirit  of  the  rule,  as  above  established.     The  evidence  offered 
is  to  prove  "a  collateral  and  iadependent  fact,  tending  to  sup- 
port the  deed,  and  consistent  with  the  deed,  and  does  not  vary 
or  control  it."     It  is  another  consideration  consistent  with  the 
one  expressed  in  the  deed,  which,  in  the  language  in  demon's 
case,  4  Coke,  "stands  with,  the  consideration  expressed." 

3.  As  the  general  rule  embraces  the  case,  it  is  incumbent  on 
the  appellees,  who  object  to  the  evidence,  to  show  the  princi- 
ple which  excepts  it  out  of  the  general  rule.     He  who  alleges 
an  exception,  must  prove  the  exception.      It  is  said,  that  there 
is  no  case  in  which  the  additional  consideration  has  been  prov- 
ed, but  where  the  consideration  expressed  was  proved  also; 
and  hence  it  is  inferred,  that  the  consideration  expressed  in  the 
deed  must  be  first  proved,  in  order  to  let  in  the  proof  of  the 
additional  consideration.     It  is  perhaps  a  sufficient  answer  to 
this  argument  to  say,  that  there  is  no  case  in  which  the  addi- 
tional proof  was  rejected,  because  the  consideration  expressed 
was  not  proved.     The  want  of  a  case,  therefore,  on  the  sub- 
ject, cannot  be  supposed  to  establish  a  principle.    The  argument 
above  stated  on  the  part  of  the  appellees,  would  prove  that  the 
testimony  ought  to  be  admitted,  quite  as  well  as  it  proves  that,, 
it  ought  to  be  rejected.    The  argument  of  the  appellees  is  brief- 
ly this — "There  is  no  case  in  which  the  additional  considera- 
tion was  admitted  where  the  consideration  expressed  was  not 
proved;  therefore,  the  additional  consideration  cannot  be  ad- 
mitted where   the  consideration  expressed  is   not   proved." 
Now,  try  the  argument  on  the  other  side.     There  is  no  case 
in  which  the  additional  consideration  was  rejected,  where  the 
consideration  expressed   was  not  proved;  therefore,  the  addi- 
tional consideration  cannot  be  rejected  where  the  consideration 
expressed  is  not  proved.     But  in  truth,  the  argument  on  both 
sides  is  illogical  and  unsound.    The  mere  want  of  a  case  proves 
no  principle.     If  the  want  of  a  case  cannot  establish  a  princi- 
ple, neither  can  it  narrow  or  limit  a  known  and  admitted  prin- 
ciple.    And  if  these  positions  be  right,  it  follows  that  the  ap- 


OP  MARYLAND. 


BETTS  «.   UNION  BANK  op  MARYLAND. — 1827 


pellees  have  failed  to  show  that  the  case  at  bar  is  an  exception 
of  the  general  rule.  If  they  fail  to  show  the  exception,  the  cast 
being  within  the  general  rule,  the  evidence  is  admissible. 

4.  It  is  objected,  that  when  it  is  proved  that  the  considera- 
tion expressed  was  not  paid,  that  then  the  deed  is  fraudulent, 
according  to  the  proof  it  becomes  void  and  inoperative,  and 
the  party  claiming  under  it  will  not  be  permitted  to  re-establish 
it  by  showing  another  consideration.  The  answer  to  this  is  al- 
ready given.  It  is  an  attempt  by  the  appellees  to  except  this 
Mase  out  of  the  general  rule;  to  narrow  the  general  rule  by  in- 
corporating with  it  the  principle  above  stated.  We  show  the 
general  rule  as  settled  and  continually  recognized;  and  we  show 
the  authorities  on  which  it  rests.  If  the  rule  is  to  be  narrow- 
ed, or  the  case  at  bar  to  be  excepted  out  of  it,  the  appellees' 
counsel  must  show  the  exception.  He  must  produce  the  au- 
thority which  establishes  the  new  principle  he  seeks  to  engraft 
on  the  rule.  He  has  failed  to  do  so.  He  cannot,  therefore, 
entitle  himself  to  the  exception  or  limitation  for  which  he  con- 
tends. Again:  The  argument  on  which  tho  appellees'  counsel 
rests  the  above  position,  is  not  sound — it  proves  too  much. 
The  principle,  on  which  the  above  position  rests,  is  this:  that 
where  a  party  impeaching  a  deed,  shows  by  proof  de  hors  the 
deed,  that  it  is  fraudulent,  and  therefore  void,  the  party  claim- 
ing under  the  deed  thus  nullified,  shall  not  be  permitted  to  offer 
evidence  dehors  the  deed,  to  re-establish  and  give  life  to  the  deed. 
If  this  position  were  trtie,  then  the  following  case  would  be 
within  it.  Property  worth  $20,000  is  conveyed,  and  the  con- 
sideration expressed  is  $5.  A  creditor  of  the  grantor  seeks  to 
vacate  the  deed.  He  proves  that  he  was  a  creditor  at  the  time 
to  the  amount  of  $10,000;  that  the  property  conveyed  was 
worth  $20,000.  Upon  this  proof  alone  it  is  clear  that  the 
deed  is  fraudulent  It  is  nullified  by  evidence  de  hors  the 
deed.  May  not  the  party  claiming  under  the  deed  prove  that 
be  actually  paid  $20,000?  All  of  the  cases  admit  he  may  do 
so;  yet  this  is  evidence  de  hors  the  deed,  and  is  offered  to  re- 
establish and  give  life  to  it;  or  to  speak  more  correctly,  it  is  of- 
fered to  show  that  the  deed  was  always  good,  was  never  null 
and  void.  It  may  be  said  in  the  case  supposed,  the  considera- 
tion expressed  in  the  deed  was  actually  paid-in  the  case  at  ba? 
i  5 


194  TCASES  IN  THE  COURT  OF  APPEALS 

BETTS  v.  UXION  BANK  OF  MARYLAND. — 1827. 

it  was  not.  This  is  a  difference  in  fact,  it  is  true;  but  a  differ- 
ence in  fact  is  not  necessarily  a  difference  in  principle.  The 
principle  upon  which  the  deed  is  made  void  in  both  cases  is, 
that  the  deed  is  a  fraud  on  the  creditor.  It  matters  not  by 
what  peculiar  chain  of  tacts  it  is  shown  to  be  a  fraud  upon  the 
creditor.  It  is  the  fraud,  however,  proved,  that  makes  it  void; 
and  if  it  is  not  fraudulent,  whatever  may  be  the  facts,  it  is  good, 
if  in  other  respects  regularly  executed.  Neither  does  the  admis- 
Tsibility  of  the  evidence  depend  on  the  payment  or  nonpay- 
ment of  the  consideration  expressed.  If  the  evidence  is  re- 
pugnant to  the  deed,  it  is  not  admitted.  If  it  is  not  repugnant 
it  is  admitted.  Whether  it  is  repugnant  or  not,  must  depend 
on  the  words  contained  in  the  deed  itself,  or  the  writing  itself, 
'and  not  on  matter  de  hors  the  deed;  not  on  matter  appearing 
ty  parol  out  of  the  deed.  Its  repugnancy,  therefore,  does  not 
depend  on  the  question,  whether  the  consideration  expressed 
was  or  was  not  paid,  but  on  the  question  whether  the  parol  evi- 
dence is  consistent  with  the  writing?  In  the  case  at  bar  the 
testimony  is  surely  quite  as  consistent  with  the  deed,  as  in  the 
case  above  supposed,  and  if  admissible  in  the  one  case  is  equal- 
ly admissible  in  the  other.  Indeed,  the  only  and  true  question 
is,  how  far  parol  evidence  is  admissible  where  there  is  an  in- 
strument of  writing?  It  is  discussed  and  decided  on  this  prin- 
ciple in  the  case  of  Villers  vs.  Beamont,  2  Dyer,  146,  and  in 
the  cases  in  Coke's  Reports  already  cited;  and  it  is  classed  un- 
der this  head  in  Sugden  and  Phillips  in  the  passages  already 
referred  to.  It  must,  therefore,  depend  not  on  the  payment  of 
the  consideration  expressed,  but  on  the  words  of  the  deed,  that 
is,  on  what  consideration  is  expressed  in  the  deed;  and  so  in- 
deed it  is  decided  in  so  many  words  in  Lord  Cromwel's  case, 
2  Coke,  76.  "The  consideration  must  stand  with  the  conside- 
ration expressed,"  that  is,  the  consideration  named  in  the  deed; 
and  no  question  is  made  about  whether  it  has  been  paid  or  not. 
And  in  Mildmaye's  case,  1  Coke,  176,  it  is  decided,  that  the 
consideration  of  marriage  is  consistent  with  a  money  conside- 
wtion;  and  the  other  cases  cited  affirm  the  same  doctrine. 

5.  This  argument  is  upon  the  admission  that  there  is  no  case 
decided  where  the  consideration  expressed  was  not  paid.  If 
m  are  right  in  the  principles  before  urged,  the  absence  of  such 


OF  MARYLAND.  195 


BETTS  v.  Union  BANK  of  MARYLAND. — 1827. 


a  case  furnishes  no  argument  against  us.  But  the  appellees' 
counsel,  in  assuming  that  fact,  is  not  strictly  correct.  In  Reads 
vs.  Livingston,  3  Johns.  Ck.  Rep.  481,  the  consideration  ex- 
pressed in  the  deed  was  money  only;  and  the  consideration  set 
up  was  marriage,  it  being  admitted  that  no  money  was  paid. 
It  is  true,  that  the  point  now  under  consideration  does  not  ap- 
pear to  have  been  raised  in  the  argument,  nor  was  it  directly  de- 
cided by  this  court,  yet  the  case  necessarily  presented  the  very 
point  now  under  discussion;  and  as  that  case  was  fully  argued, 
and  is  most  ably  decided  by  Chancellor  Kent,  upon  great  consi- 
deration, it  cannot  be  supposed  that  the  eminent  counsel,  and 
distinguished  chancellor,  would  entirely  overlook  a  point  which 
met  them  at  the  very  threshold  of  the  discussion,  and  which, 
if  the  evidence  be  not  admissible,  decided  the  case  at  once,  and 
relieved  it  from  the  many  interesting  and  difficult  questions 
which  appear  to  have  been  so  elaborately  considered,  and  so 
well  decided  by  the  chancellor.  The  whole  argument  of  Chan- 
cellor Kent  proceeds  on  the  assumption  that  the  evidence  is 
admissible.  It  may  be  inferred  from  this  that  it  was  consider- 
ed a  settled  point,  and  no  doubts  entertained  about  it  at  the  bar, 
or  by  the  court.  If  this  inference  be  just,  it  sanctions,  in  all 
respects,  the  admissibility  of  the  evidence  as  contended  for  by 
the  appellants.  It  is  indeed  hardly  possible  to  believe,  that  the 
point  was  overlooked  or  forgotten;  for  the  very  same  principle 
was  discussed  and  decided  upon  by  Chancellor  Kent,  in  Hil- 
dreth  vs.  Sands,  2  Johns.  Ch.  Hep.  35,  only  about  two  years 
before  the  case  of  Reade  vs.  Livingston.  The  chancellor's  de- 
cision is  not  on  the  precise  point  or  the  precise  facts  now  under 
discussion,  but  it  involved  the  same  general  principle.  It  was 
decided  according  to  all  the  authorities,  and  supports  the  prin- 
ciple as  contended  for  on  the  part  of  the  appellants.  This  case 
brings  us  to  the  only  exception  to  the  general  rule;  which  ex- 
ception is  recognized  in  the  case  of  Hildreth  vs.  Sands. 

6.  It  may  .be  admitted,  that  where  a  deed  purports  to  be  for 
a  valuable  consideration,  it  cannot  be  set  up  as  a  gift  or  vo- 
luntary conveyance.  This  is  the  doctrine  laid  down  by  Ld. 
Hardwicke  in  Bridgman  vs.  Green,  2  Ves.  627,  628.  But 
even  there  it  is  subject  to  certain  limitations,  and  is  not  to  be 
taken  as  universally  true  between  all  parties  who  may  seek  t* 


196  CASES  IN  THE  COURT  OF  APPEALS 

BETTS  v,  UNION  BALTIC  OF  MARYLAND. — 1827. 

invalidate  it.  In  Clarkson  vs.  Hanway,  2  P.  Wins.  203,  the 
principle  last  stated  is  decided;  and  this,  which  is  the  oldest  case 
upon  the  subject,  may  be  considered  as  furnishing  the  principle 
by  which  the  case  of  Bridgman  vs.  Green,  and  the  subsequent 
cases,  have  been  governed.  In  the  case  of  Clarkson  vs.  Han- 
way,  the  deed  not  only  purported  to  be  for  a  valuable  conside- 
ration, but  was  insisted  oh  as  such  in  the  answer.  In  Hildreth 
vs.  Sands,  the  deed  purported  on  the  face  of  it  to  be  for  a  va- 
luable consideration,  and  was  also  insisted  on  as  such  in  the  an- 
swer; and  the  chancellor's  opinion  confirms  the  principle  as 
Above  stated^  with  this  additional  limitation,  that  it  must  be 
tsbrought  forward,"  that  is,  insisted  on  in  the  answer  aa 
founded  on  a  valuable  consideration.  The  case  of  Watt  vs* 
Grove,  2  Sch.  fy  Lef.  492,  501,  will  be  found  not  to  impair  the 
principles  we  have  stated.  The  result  of  all  of  these  cases, 
(and  they  are  believed  to  be  the  only  ones  that  bear  immedi- 
ately on  this  part  of  the  case,)  is  to  make  the  exception  evea 
still  more  limited  in  its  operation  than  is  admitted  at  the  head 
of  this  division  of  the  subject.  The  true  extent,  as  proved  by 
the  authorities  cited,  appears  to  be  this — Where  the  grantor 
was  a  weak  man,  liable  lo  be  imposed  upon,  or  from  his  rela- 
tive situation  was  liable  to  the  influence  of,  or  to  be  imposed 
upon  by,  the  grantee,  in  such  cases,  if  the  deed  appears  on  the 
face  of  it  to  have  been  for  a  full  and  fair  valuable  consideration, 
then  the  grantee  shall  not  be  permitted  to  set  it  up  as  a  gift. 
The  cases  of  ClarJeson  vs.  Hanway,  Bridgman  vs.  Green, 
and  Watt  vs.  Grove,  were  all  cases  of  this  description,  and  de- 
cided upon  principles  that  are  not  applicable  to  any  other  class 
of  cases.  The  case  of  Hildreth,  vs.  Sands,  is  indeed  a  case  of 
a  different  description,  and  the  deed  is  impeached  by  a  condi- 
tion, not  on  the  ground  ot  imposition  on  the  grantor,  but  as  a 
fraud  by  the  grantor  upon  the  creditor.  In  that  case,  howe- 
Ter,  the  defendant  had  put  his  defence  in  his  answer,  "upon 
the  fact  of  a  fair  purchase  for  an  adequate  price,'1,  and  it  is  up*, 
on  that  ground  that  the  chancellor  rules  the  evidence  to  be  in- 
admissible. This  case,  therefore,  does  not  enlarge  the  excep- 
tion beyond  what  is  warranted  by  the  English  authorities.  It 
is  very  clear  that  a  defendant  cannot  be  permitted  to  put  his 
defence  on  one  ground  in  bis  answer,  and  another  in  his  evi- 


OP  MARYLAKB.  197 


BETTS  v.  UXIOIT  BANK  OF  MARTI.ASH. — 1827. 

dence.  If  this  view  of  the  subject  be  right,  the  exception 
would  not  apply  to  cases,  where  the  deed,  on  the  face  of  it, 
was  for  a  consideration  merely  nominal,  and  obviously  intend- 
ed merely  to  give  the  deed  a  legal  operation;  nor  to  cases 
where  a  creditor  claimed  to  vacate  the  deed  as  a  fraud  upon 
him,  unless  the  defendant  in  his  answer  alleged  the  considera- 
tion in  the  deed  to  be  the  true  consideration.  But  if  these 
views  are  mistaken  ones,  yet  it  seems  perfectly  clear,  that  none 
of  the  cases,  nor  even  the  arguments  of  the  court  in  pronounc- 
ing the  judgment,  when  the  whole  argument  is  taken  together, 
carry  the  exception  beyond  the  limits  admitted  at  the  head  of 
this  division  of  the  subject.  If  the  cases  have  carried  the  ex- 
ception no  further,  there  is  no  principle  settled  in  them  which 
requires  it  to  be  carried  further.  For  if  the  danger  of  perjury 
is  the  objection  to  the  testimony,  there  is  precisely  the  same 
elanger  where  an  inadequate  price  is  mentioned  in  the  deed, 
and  parol  evidence  admitted  to  prove  that  a  larger  sum  was 
paid;  yet  it  is  agreed  on  all  hands  that  this  may  be  done.  And 
it  inconsistency  with  the  words  of  the  deed  be  the  objection, 
the  proof  of  the  consideration  of  marriage  is  no  more  incon- 
sistent with  the  deed,  than  the  proof  of  an  additional  money 
consideration,  where  a  smaller  money  consideration  is  the  only 
one  expressed.  And  when  the  case  of  Watt  vs.  Grove,  is  care- 
fully examined,  it  will  be  found,  that  not  only  an  additional 
payment  of  money  may  be  proved  by  parol,  but  the  payment 
of  money  upon  a  contract  different  from  that  recited  in  the 
deed,  and  distinct  from  that  on  which  the  deed  purports  to  have 
been  made.  It  results,  therefore,  1st.  That  by  the  general  rule 
the  evidence  of  the  consideration  of  marriage  is  admissible  in 
the  case  at  bar.  2d.  That  the  exception  to  the  rule,  does  not 
embrace  it. 

The  cases  of  Watt  vs.  Grove,  and  Peacock  vs.  Monk,  re- 
main to  be  examined,  and  will  be  found  not  to  impeach  the  prin- 
ciple insisted  on  by  us.  In  Watt  vs.  Grove,  the  considera- 
tion expressed  in  the  deed  was  money — the  additional  conside- 
ration was  also  money.  The  remarks  of  Lord  Redesdale  must, 
therefore,  be  considered  as  applicable  to  that  class  of  cases.  He 
speaks  of  the  danger  of  parol  evidence,  but  does  he  say  the 
evidence  offered  was  inadmissible?  On  the  contrary,  in  speak' 


198  CASKS  IN  THE  COURT  OF  APPEALS 

BETTS  v.  UNION  BANK  OF  MARYLAND. — 1827. 

ing  of  the  additional  consideration  alleged,  he  says,  "it  should 
be  proved  by  the  most  decisive  testimony."  And  he  decides 
against  the  deed,  not  because  the  evidence  was  inadmissible, 
but  because  the  testimony  was  not  sufficient  to  prove  the  fact. 
Another  important  part  of  this  case  ought  not  to  be  overlooked. 
The  chancellor  decides  that  a  contract  recited  in  the  deed  is 
falsely  stated  as  the  original  contract,  and  that,  too,  by  the 
grantee,  whose  interest  was  to  be  advanced  by  the  misstatement, 
and  who  had  himself  prepared  the  instrument.  The  addition- 
al evidence  was  offered  to  show,  not  the  truth  of  the  recital, 
but  to  show  another  and  a  different  contract,  by  which  the  ori- 
ginal one  had  been  afterwards  changed  to  the  one  recited  5-  yet 
this  evidence  he  held  to  be  admissible. 

If  the  evidence  here  stated  was  admissible,  in  what  respect 
can  the  case  at  bar  be  supposed  to  differ  in  principle?  Here 
the  consideration,  mentioned  in  the  deed,  was  not  paid,  and 
another  valuable  consideration  is  offered  to  support  the  deed* 
The  deed  was  not  prepared  by  Mrs.  Betts  or  her  agents,  and 
»he  is  not,  therefore,  responsible  for  a  false  recital  of  the  con- 
tract. In  Peacock  vs.  Monk,  I  F'es.  128,  the  parol  evidenced 
was  admitted;  but  there  was  no  consideration  expressed  in  the 
deed,  and  the  chancellor  says,  arguendo,  that  where  a  particu- 
lar consideration  is  expressed,  it  is  a  negative  of  any  other1,  un  ' 
less  it  is  added  "for  other  considerations. "  It  is  not  often  that 
the  opinions  of  Lord  Hardwicke  can  be  questioned,  and  per- 
haps in  this  case  his  words  may  not  be  accurately  reported. 
For  his  dictum  here  is  contrary  to  the  judgment  of  the  court 
in  the  case  of  "Fillers  vs.  Beamont.  And  the  authority  of 
the  case  of  Villers  vs.  Beamont,  is  sanctioned  by  the  cases  in 
Coke's  Reports,  where  it  is  always  referred  to  as  settling  the 
law  on  this  point.  Phillip's  Evid.  426,  (note.)  Indeed,  the 
principle  established  by  the  case  of  Villers  vs.  Beamont  has 
never  been  shaken  by  any  subsequent  judgment,  and  is  not 
questioned  by  the  chancellor  in  the  case  now  at  bar. 

In  addition  to  the  cases  already  cited,  the  following  are  also 
referred  to  in  maintenance  of  the  same  principles.  The  King 
vs.  Inhabitants  of  Scammonden,  3  T.  R.  474.  The  King 
vs.  Inhabitants  of  Laindon,  8  T.  R.  379.  Eppes  vs.  Ran- 
dolph, 2  Call's  Rep.  125.  Duvalvs.  Bibb,  4  Hen.  #  Munf. 


OF  MARYLAND. 


BETTS  ».   UHION  BANK  OF  MARYLAND. — 1827. 


113.  In  Eppesvs.  Randolph,  the  consideration  expressed  in 
the  deed  to  David  M.  Randolph,  was  natural  love  and  affec- 
tion, and  for  his  advancement  in  life.  If  there  was  no  other 
consideration,  the  deed  was  voluntary  and  fraudulent  against 
the  creditor.  The  evidence  offered  was,  that  it  was  in  con- 
sideration of  marriage;  and  the  evidence  was  held  to  be  admis- 
sible. And  the  case  of  Duval  vs.  Bibb,  refers  to  and  recog- 
nizes the  decision  in  Eppes  vs.  Randolph.  The  authorities 
before  uted  and  remarked  upon,  are  believed  to  be  the  only 
cases  bearing  upon  the  principles  now  in  discussion.  The  de- 
cisions are  all  consistent  with  each  other.  It  is  insisted  that 
they  establish  the  principles  we  contend  for,  and  show  the  evi- 
dence of  the  consideration  of  marriage  to  be  admissible. 

If  the  deed  to  Mrs.  Belts  be  a  fraud  upon  the  bank,  the 
deed  to  the  bank,  was  equally  a  fraud  upon  her.  The  bank 
and  Mrs.  Belts,  were  both  innocent  purchasers  for  a  fair  and 
valuable  consideration.  If  a  nominal  and  inadequate  or  false 
money  consideration  had  been  stated  in  the  deed  to  the  bank, 
it  is  clear  that  they  might  have  shown  the  true  considera- 
tion in  money.  It  would  be  a  severe  rqle  of  equity,  if  Mrs. 
Belts  who  is  equally  innocent— equally  a  purchaser — should 
yet  be  precluded  from  the  like  privilege,  when  it  involves 
on  his  part  no  more  danger  of  perjury,  and  is  no  more  in- 
consistent with  the  deed,  than  it  would  have  been  in  the  case 
before  supposed,  on  the  part  of  the  bank.  The  authorities  do 
not  lead  to  such  a  conclusion,  nor  do  they  support  such  a  rule, 
and  it  is  hoped  that  it  will  not  now  be  established  in  this  court. 

The  act  ot  1766,  ch.  14,  s.  5,  by  a  true  construction,  means 
the  date  of  the  deed  as  therein  expressed.  This  is  evident  from 
other  parts  of  that  act.  2  Com.  Dig.  64.  The  act  then  fixes 
the  date  of  the  deed,  and  as  the  prior  title  was  in  Mrs.  Belts, 
it  is  of  no  consequence  when  the  deed  was  delivered.  The 
question  is,  whether  the  appellees  have  a  superior  equitable 
title,  Mrs.  Bells  having  the  prior  legal  title?  The  deed  to  her 
must  be  taken  to  be  a  true  deed. 

Curia  adv.  vult. 

STEPHEN,  J.  at  the  present  term,  delivered  the  opinion  of 
the  Court.  In  deciding  the  question  which  arises  in  thi»  case; 


200  CASES  IN  THE  COURT  OP  APPEALS 

BETTS  «.   UNION  BANK  OF  MAHTIAND. — 1827. 

no  little  difficulty  has  been  felt,  from  the  contrariety  of  opinions 
which  have  been  expressed  by  judges  of  the  greatest  eminence 
and  distinction,  in  cases  very  analogous,  if  not  exactly  similar 
to  the  present;  and  the  importance  of  the  principle  now  to  be 
established  as  a  rule  of  evidence,  merits  the  most  full  and  de- 
liberate consideration.  The  question  then  presented  to  this 
court  for  their  adjudication,  is  simply  this.  Can  marriage  be 
given  in  evidence  as  the  consideration  of  a  deed  of  bargain  and 
sale,  which  is  expressed  to  be  made  for  a  money  consideration 
only?  The  facts  of  the  case  are  as  follows:  Enoch  Belts  being 
considerably  indebted  to  the  Union  Bank  of  Maryland,  and 
being  about  to  be  married  to  Elizabeth  Ball,  on  the  17th  of 
Maich  1819,  executed  a  deed,  by  which  he  conveyed  to  her, 
and  her  heirs,  a  lot  or  parcel  of  ground  in  the  city  of  Balti- 
more, for  the  consideration  mentioned  in  said  deed,  of  $4000, 
On  the  twenty-fourth  day  of  the  same  month,  and  the  same 
year,  for  the  purpose  of  securing  the  payment  of  $1700  to  the 
Union  Bank  of  Maryland,  he  executed  to  the  said  bank  a 
deed  of  the  same  lot  or  parcel  of  ground,  in  trust,  to  sell  the 
same  for  the  payment  of  said  debt,  upon  the  terms  and  condi- 
tions therein  specified.  On  the  25th  of  September  1820,  The 
President  and  Directors  of  the  T^nion  Bank  of  Maryland 
filed  their  bill  in  the  court  of  chancery,  for  the  purpose  of  va- 
cating and  annulling  the  above  mentioned  deed  to  Elizabeth 
Ball,  upon  the  ground  that  they  had  no  knowledge  of  its  ex- 
istence, at  the  time  the  aforesaid  deed  was  made  to  them.  It  is 
admitted  that  the  consideration  of  $4000,  specified  in  said  deed, 
never  was  paid ;  but  it  is  contended  that  the  deed  of  convey- 
ance may  be  supported,  by  proving  that  the  consideration  ia 
truth  was  marriage,  and  that  such  proof  is  legally  admissible. 
It  is  not  deemed  necessary  to  enter  into  a  more  full  detail  of 
the  facts  and  circumstances  belonging  to  this  case;  because  if 
the  proof  that  marriage  was  the  real  consideration,  is  excluded 
by  the  rules  of  evidence  upon  the  subject,  the  chancellor's  de- 
cree, ordering  a  sale  of  the  property  for  the  benefit  of  the  bank, 
under  the  deed  of  the  24th  of  March  1819,  and  annulling  that 
of  the  1 7th  of  March  of  the  same  year,  to  Elizabeth  Ball, 
now  Elizabeth  Betts,  ought  to  be  affirmed.  As  has  already 
been  remarked,  the  authorities  upon  this  part  of  the  law  tf  eyi* 


MARYlANU. 


BKTTS  v.  UNION  BANK  OF  MARYLAND       1827. 


dence  are  contrariant,  and  cannot  be  reconciled.  There  is, 
however,  one  great  and  leading  principle  in  the  law  of  evi- 
dence relative  to  this  subject,  in  the  affirmance  of  which  they 
all  concur.  It  is  this,  that  no  evidence  is  admissible  which  con- 
tradicts the  deod.  In  Maigley  vs.  Hauer,  7  Johns.  Rep.  341, 
where  it  was  attempted  to  prove  by  parol  evidence  an  addition- 
al consideration  to  the  one  expressed  in  the  deed,  the  court  say* 
"it  is  a  settled  rule*  that  wheie  the  consideration  is  expressly 
stated  in  a  deed,  and  it  is  not  said  also,  and  for  other  considera- 
tions, you  cannot  enter  into  proof  of  any  other,  for  that  would 
be  contrary  to  the  deed.  This  was  so  decided  by  this  court  in 
Schermerhorn  vs.  Vanderdeyden,  1  Johns.  Rep.  139,  and  a- 
gain  in  Howes  vs.  Barker,  3  Johns.  Rep.  506.  The  same  rule 
prevails  in  equity,  according  to  the  cases  of  Clark&on  vs.  Han- 
way,  2  P.  Wms.  203,  and  of  Peacock  vs.  Munk,  1  Ves.  127; 
and  the  remedy  for  the  party>  if  the  deed  be  contrary  to  the 
truth  of  the  case,  is  by  seeking  relief  in  equity  against  the  deed, 
en  the  ground  of  fraud  or  mistake,  as  was  intimated  in  the  case 
of  Howes  vs.  Barker,  and  as  was  adopted  in  the  case  of  Fil- 
mer  vs.  Gott,  7  Bro.  Parl.  Cas.  70."  In  the  case  of  Pea- 
fock  vs.  Monk,  1  Ves.  128,  a  bill  was  filed,  claiming  the  bene- 
fit of  a  trust  under  a  deed,  and  the  point  was^  whether  the  plain- 
tiff could  prove  a  valuable  consideration,  as  no  consideration, 
was  expressed  in  the  deed.  Lord  Hardwicke  held,  that  the 
proof  ought  to  be  read.  "It  differed,  he  saidj  from  the  com- 
mon case,  upon  which  the  objection  is  founded,  for  to  be  sure,- 
where  any  consideration  is  mentioned,  as  of  love  and  affection 
only,  if  it  is  not  said  also,  for  Other  Considerations,  you  cannofe 
enter  into  proof  of  any  other;  the  reason  is  because  it  would  be 
contrary  to  the  deed,  for  when  the  deed  says  it  is  in  considerati- 
on of  such  a  particular  thing,  that  imports  the  whole  considerati- 
on, and  is  negative  to  any  other.  But  this  is  a  middle  case,  there 
being  no  consideration  at  all  in  the  deed;"  Thus  it  appears 
that  the  supreme  court. of  New- York  have  adopted  the  princi- 
ple established  by  Lord  Hardwicke,  and  excluded  the  proof  of 
any  other  consideration,  where  one  is  expressed  in  the  deed, 
and  it  is  not  said  for  other  considerations,  on  the  ground  that 
the  admission  of  such  proof  would  be  contrary  to  the  deed. 
CThis  doctrine  is  certainly  not  reconcileable  to  the  decision  eiad0 
VOL.  i.  26 


202       CASES  IN  THE  COURT  OF  APPEALS 

BETTS  D.  UNION  BANK  OF  MARYLAND. — 1827. 

in  Fillers  and  Beamont,  2  Dyer,  146.  In  that  case  the  con- 
sideration in  a  deed  of  bargain  and  sale  of  lands  was  stated  to 
be  a  sum  of  money,  but  it  was  averred,  and  found  by  the  jury, 
that  the  indenture  was  made  "as  well  in  consideration  of  mar* 
riage,  (to  make  it  a  jointure  and  bar  dower,)  as  of  the  said  sum 
of  money;"  and  it  was  adjudged,  that  although  there  was  a 
particular  consideration  mentioned  in  the  deed,  yet  an  averment 
might  be  made  of  another  consideration,  which  stood  with  the 
indenture,  and  which  was  not  contrary  to  it.  Which  decision 
has  since  been  sanctioned  by  Lord  Coke.  Thus  it  appears  that 
both  these  conflicting  decisions  concur  in  the  principle,  as  indis- 
putable law,  that  no  averment  of  any  consideration  out  of  the 
deed  can  be  made  when  it  would  tend  to  contradict  the  deed/ 
1  Phillip* s  Evidence,  425,  426. 

It  is  not  intended  by  this  adjudication  to  recognize  and  adopt 
the  rule  of  evidence  as  laid  down  by  either  of  those  high  authori- 
ties, but  simply  to  decide  the  question  involved  in  this  case  upo» 
the  peculiar  facts  and  circumstances  which  belong  to  it.  It  is  ad- 
"initted  that  the  consideration  mentioned  in  the  deed  now  before 
the  court,  was  merely  nominal,  and  never  was  in  fact  paid.  Can 
the  party  then,  claiming  under  it,  be  permitted  to  prove  that  the 
consideration  expressed  in  the  deed  was  not  the  true  considera- 
tion, but  that  the  consideration  was  marriage?  Upon  a  care- 
ful examination  of  the  authorities  relative  to  this  subject,  it 
appears  that  the  greatest  extent  to  which  they  have  gone,  has 
been  to  allow  an  additional  consideration  to  be  proved,  which, 
is  not  repugnant  to  the  one  mentioned  in  the  deed.  But 
where  a  deed  is  impeached  for  fraud,  the  party  to  whom  the 
fraud  is  imputed  will  not  be  permitted  to  prove  any  other  con- 
sideration in  support  of  the  instrument.  1  Phillip1  s  Evid.  426. 
The  case  of  Clarkson  vs.  Hanway,  2  P.  Wms.  203,  is  to 
the  same  effect  In  that  case  the  Master  of  the  Rolls  says, 
"judging  upon  the  face  of  a  deed  is  judging  upon  evidence 
which  cannot  err;  whereas  the  testimony  of  witnesses  may  be 
false."  It  is  the  consideration  expressed  in  the  deed  impeach- 
ed as  fraudulent,  which  excludes  the  proof  of  any  other  con- 
sideration in  support  of  it,  and  not  the  circumstance  that  the 
party  charged  with  the  fraud  has  relied  upon  such  consideration 
in  hi*  answer,  although  such  reliance  might  render  the  proof 


OF  MARYLAND.  203 


BETTS  v.  Uwrow  BANK  OF  MARTLAND. — 1827. 


still  more  objectionable,  because  he  had  thereby  put  his  defence- 
upon  the  same  ground.  But  in  this  case  the  proof  that  mar- 
riage was  the  real  consideration,  and  not  money,  as  mentioned 
in  the  deed,  was  inadmissible,  as  being  contradictory  to  the 
language  of  the  instrument,  and  not  an  averment  of  another 
consideration,  not  inconsistent  with,  but  additional  to  the  one  ex- 
pressed. In  1  Phill.  Evid.426;  it  is  said,  that  the  rule  which 
the  authorities  appear  to  have  established  is,  "that  although  a 
consideration  is  expressed,  some  other  additional  considera- 
tion may  be  shown  not  inconsistent  with  the  former."  The 
consideration  then,  which  was  offered  to  be  proved  in  this  case, 
(though  a  valuable  one,)  not  being  in  addition  to  the  one  ex- 
pressed, but  as  a  substitute  for  it,  was  repugnant  to  the  aver- 
ment of  the  deed,  and  upon  the  admitted  principle,  was  inad- 
missible as  being  contrary  to.it. 

To  give  the  rule  a  greater  latitude  would,  it  is  conceived,  be 
repugnant  to  the  general  principles  and  policy  of  the  law  in  rela- 
tion to  titles  to  real  property,  the  evidences  and  muniments  of 
which  are  required  to  be  in  writing,and  enrolled  forpublic  inspec- 
tion and  information  in  cases  of  contracts  made  relative  thereto. 

The  objection,  that  the  deed  to  Mrs.  Beits  only  took  ef- 
fect from-  the  time  of  its  delivery,  cannot  be  sustained.  As  a 
general  principle  of  the  law,  there  is  no  doubt  that  delivery 
is  essential  to  the  legal  existence  and  validity  of  a  deed;  but 
our  legislative  enactment  puts  that  part  of  the  controversy  at 
rest,  by  declaring  the  deed  to  be  efficient  and  operative  from 
the  time  of  its  date. 

It  has  been  doubted  whether  the  deed  could  be  supported*, 
even  if  proof  that  marriage  was  the  consideration  could  be  re- 
ceived. That  ante-nuptial  settlements,  made  in  consideration 
of  marriage,  are  good  even  though  the  party  be  then  indebted 
— See  Reade  vs.  Livingston,  3  Johns.  Ch.  Rep.  494,  and  the 
cases  there  cited;  but  as  the  evidence,  that  marriage  and  not 
money,  was  the  true  consideration  of  the  deed  in  this  case,  is 
not  admissible,  it  follows  that  the  decree  of  the  chancellor  must 
be  affirmed. 

MARTIN,  J.  dissented. 

DECREE   AFFIRMEP: 


204  CASES  IN  THE  COURT  OF  APPEALS 

OLIVER  v.  GRAY  —1827 

^,|      ,  ...•  «!•      •  LI  ——-!-.          —  — .  •  ...•!.. 

OLIVER  vs.  GRAY. — June  1827. 

The  act  of  limitations,  (1715,  ch,  23,)  does  not  extinguish  the  debt,  but  on- 
ly  bars  the  remedy.  An  acknowledgment  of  a  debt,  or  a  promise  to  pay- 
it,  by  the  defendant,  within  the  time  prescribed,  is  sufficient  to  revive 
the  action. 

field,  1.  That  the  suit  is  to  be  brought  on  the  original  cause  of  action,  and 
not  on  the  new  promise  or  acknowledgment,  which  only  restores  the  re- 
medy. 

As  to  what  promises  or  acknowledgments  will  take  a  case  out  of  the  act  of 
limitations— 

Hdd,  2.  That  the  promise  need  not  be  absolute,  but  a  conditional  promise 
is  sufficient;  and  in  such  case  it  is  incumbent  on  the  plaintiff  to  show  at 
the  trial,  either  a  performance  of  the  condition,  or  a  readiness  to  per- 
form it. 

Held;  3.  That  the  acknowledgment  must  be  of  a  present  subsisting  debt* 
unaccompanied  by  any  qualification  or  declarations,  which,  if  true, 
would  exempt  a  defendant  from  a  moral  obligation  to  pay. 

Held,  4  That  such  an  acknowledgment,  accompanied  with  a  naked  refusal 
4o  pay,  or  a  refusal  and  an  excuse  for  not  paying,  which  in  itself  implied 
an  admission  that  the  debt  remained  due,  and  furnished  no  real  objection 
to  the  payment  of  it,  is  sufficient. 

Reid,  5.  That  any  unqualified  acknowledgment,  &c.  with  no  other  excuse 
for  not  paying  than  a  reliance  on  the  bar  created  by  the  act  of  limitations, 
is  sufficient  to  take  the  case  out  of  the  act. 

Held,  6.   That  the  acknowledgment  may  be  in  whole,  or  in  part. 

Held,  7.  That  it  is  sufficient  if  it  be  after  bringing  the  suit. 

tffeld,  8  An  admission  that  the  sum  claimed  has  not  been  paid,  is  not  suffi- 
cient to  take  &  case  out  of  the  act  of  limitations,  without  some  further 
admission,  or  other  proof  that  the  debt  once  existed. 

Held,  9.  The  acknowledgment  need  not  be  made  to  the  plaintiff  himself, 
but  may  be  made  to  any  body  else. 

Held,  10.  It  is  for  the  court  to  decide  what  kind  of  promise  or  acknowledg- 
ment is  sufficient  to  take  a  case  out  of  the  act  of  limitations;  and  the  evi- 
dence offered  to  prove  snch  promise  or  acknowledgment,  is  proper  to 
be  submitted  to  the  jury,  as  in  in  other  cases,  under  the  direction  of 
the  court. 

Every  acknowledgment  which  is  offered  to  tike  a  case  out  of  the  act  of  li- 
mitations, must  be  taken  all  together;  and  no  evidence  can  be  received, 
to  turn  a  denial  of  the  existence  of  a  debt  into  an  acknowledgment  of  a 
subsisting  liability,  by  proving  that  the  party  making  the  admission  was 
mistaken  in  supposing  the  debt  to  have  been  paid. 

Where  the  plaintiff  chooses  to  introduce  the  defendant's  declarations  to 
take  a  case  out  of  the  act  of  limitations,  he  must  be  content  to  take  them 
as  they  are,  and  cannot  be  permitted  to  disprove  them  by  other  evi- 
dence. 

APPEAL  from  Baltimore  County  Court.     This  was  an  ac- 
tion of  assumpsit  brought  by  the  appellant,   Robert 


OF  MARYLAND.  205 


OUTER  v.   GRAY.— 1827. 


surviving  partner  of  John  Oliver,  against  the  appellee,  and 
one  Robert  Taylor,  (who  was  returned  non  est,)  for  money 
had  and  received;  for  money  lent  and  advanced;  for  money 
laid  out,  expended  and  paid;  on  an  insimul  comput  assent t 
and  on  a  promissory  note.  The  writ  was  issued  on  the  14th 
of  March  1823.  The  defendant  pleaded  non  assumpsit,  non 
assumpsit  infra  tres  annos,  and  actio  non  accrevit  infra 
tres  annos.  To  which  there  were  the  general  replications, 
and  issues  joined. 

At  the  trial  the  plaintiff  read  in  evidence  the  following  pro~ 
missory  note,  which  was  admitted  to  be  signed  by  the  defend- 
ant Gray,  in  the  name  of  Gray  and  Taylor,  in  the  manner  as 
thereby  appears,  in  his  own  proper  handwriting,  and  by  him 
delivered  to  Robert  and  John  Oliver,  at  the  time  it  bears  date. 
And  it  was  also  admitted  that  the  defendant,  Gray,  arid  Ro- 
bert Taylor  the  other  defendant,  who  was  returned  non  est 
inventus  on  the  original  writ  in  this  cause,  were  at  the  time  of 
the  execution  of  the  said  note,  and  for  some  time  before  and  af- 
ter the  execution  thereof,  partners  in  trade,  and  carrying  on 
trade  and  commerce  under  the  name  and  firm  of  Gray  and 
Taylor.  Which  said  note  is  as  follows: 
"Dollars  5000.  Baltimore,  14th  October,  1813. 

On  demand  we  promise  to  pay  to  the  order  of  Robert  and 
John  Oliver,  five  thousand  dollars,  with  legal  interest  from  this 
date,  for  value  received.  . 

Gray  $  Taylor." 

The  plaintiff  also  offered  in  evidence,  that  the  defendant, 
Gray,  in  the  year  1816,  paid  the  interest  due  on  the  said  notej 
and  that  about  one  year,  or  one  year  and  an  half  after  the  said 
interest  was  paid,  the  witness,  as  the  agent  of  Robert  and  John 
Oliver,  called  on  the  defendant  for  the  interest  then  due,  and 
that  the  defendant  answered  that  he  had  paid  the  last  interest 
out  of  his  own  individual  funds,  and  that  he  was  unable  to  pay 
the  interest  then  demanded.  That  the  defendant  resided  in 
this  state,  near  Baltimore',  that  the  said  house  of  Gray  and 
Taylor  resided  in  the  city  of  Philadelphia,  and  failed  in  1815 
or  1816.  The  plaintiff  further  offered  in  evidence,  by  John 
Purviance,  Esquire,  a  competent  witness,  that  some  time  after 


206  CASES  IN  THE  COURT  OF  APPEALS 

OLIVER  v.  GRAY-— 1&27. 

Gray  and  Taylor  failed,  and  had  executed  the  deed  of  trust 
for  the  benefit  of  their  creditors,  upon  the  plaintiff's  expressing 
much  dissatisfaction  at  his  being  excluded  from  the  benefit  of 
said  deed  of  trust,  the  defendant  said  he  had  excluded  him 
from  the  belief  that  he  was  paid  out  of  the  securities  in  his 
hands;  that  he  did  not  consider  Gray  and  Taylor  indebted  to 
the  plaintiff,  but  that  as  the  plaintiff  was  dissatisfied,  he  would 
be  very  glad,  if  it  was  not  too  late,  that  he  should  be  permitted 
to  come  in  as  one  of  the  creditors  of  Gray  and  Taylor,  and 
the  defendant  said  he  would  write  a  letter  to  Philadelphia  to 
ascertain  whether  this  arrangement  could  be  made,  and  to  in- 
quire of  counsel  in  Philadelphia.  It  was,  however,  the  opini- 
on of  the  counsel,  who  was  consulted,  that  it  was  too  late,  and 
the  plaintiff  was  excluded  from  all  benefit  of  the  deed  of  trust. 
That  since  this  suit  was  pending,  the  defendant  said  to  the 
said  witness,  frequently,  that  he  regretted  that  the  plaintiff  was 
excluded  from  the  said  deed  of  trust,  and  wished  he  had  been 
allowed  to  come  in  for  his  claim  under  the  said  deed ;  but  al- 
ways added,  that  he  did  not  consider  that  he  was  indebted  to 
the  plaintiff,  because  the  plaintiff  had  it  in  his  power  to  have 
saved  himself,  with  the  sureties  received  from  William 
Taylor,  and  ought  not,  therefore,  to  have  looked  to 
him  for  the  money.  The  defendant  also,  in  these  latter 
conversations,  stated  the  hardship  of  his  condition:  that 
he  was  poor,  and  no  benefit  could  result  from  a  recovery, 
if  the  plaintiff  succeeded  in  establishing  his  claim.  That  his 
partner  too  was  poor;  and  that  his  partner,  who  was  sued 
by  the  plaintiff  in  Philadelphia,  complained  of  the  situation 
in  which  the  defendant  had  placed  him  with  the  plaintiff,  by 
not  including  him  among  the  creditors  in  the  deed  of  trust. 
And  the  defendant  stated  in  one  or  more  of  the  conversation* 
«n  the  subject  with  the  witness,  that  he  understood  from  the 
plaintiff  himself,  that  he  had  securities  in  his  possession  suffi- 
cient to  cover  the  amount  of  his  claim  against  Gray  and  Tay- 
lor, as  well  as  William  Taylor.  The  plaintiff  further  offered 
in  evidence,  that  he  was  not  paid  by  the  securities  referred  to 
in  the  preceding  conversation,  and  that  William  Taylor  was 
still  indebted  to  the  plaintiff  in  a  large  sum  of  money,  although 
the  ship  Orozimbo,  hereinafter  mentioned,  had  been  sold  to  the 


OF  MARYLAND.  207 


OLIVER  v.   GRAT. — 1827 


best  advantage.  The  plaintiff  further  read  in  evidence  the  en- 
dorsement on  the  bill  for  discovery,  hereafter  inserted,  and  the 
answer  of  the  defendant  to  the  said  bill;  which  said  bill  and 
answer  here  follow:  [The  bill  here  referred  to  was  filed  in. 
1819,  in  Baltimore  county  court,  sitting  as  a  court  of  equity, 
by  Gray  and  Taylor,  against  Robert  and  John  Oliver,  for  a 
discovery  respecting  the  ship  Orozimbo,  &c.  The  answer- 
thereto,  of  R.  Oliver,  was  filed  in  1824.  But  as  they  do  not 
appear  to  be  material  in  the  decision  of  this  cause,  they  are- 
omitted  here.]  It  was  admitted  that  Robert  and  John  Oliver, 
mentioned  in  the.  said  bill,  and  the  payees  in  the  above  men- 
tioned note,  are  the  same  persons,  and  that  Edward  Gray  and 
Robert  Taylor,  mentioned  in  the  said  bill,  and  who  are  plain- 
tiffs in  the  said  bill,  are  the  same  persons  against  whom  the  ori- 
ginal writ  issued  in  this  cause.  The  defendant  then  prayed  the 
opinion  of  the  court,  and  their  direction  to  the  jury,  that  upoa 
the  evidence  above  stated  the  plaintiff  is  not  entitled  to  reco- 
ver on  the  second  and  third  issues  joined  in  the  cause.  Which 
opinion  and  direction  the  Court,  [Hanson  and  Ward,  A.  J.] 
gave  to  the  jury.  The  plaintiff  excepted;  and  the  verdict  and 
judgment  being  against  him,  he  appealed  to  this  court. 

The  cause  was  argued  before  BucHANAN,Ch.  J.  and  EARLE, 
MARTIN,  STEPHEN,  and  DORSET,  J. 

Latrobe,  for  the  Appellant,  contended,  1.  That  the  statute  of 
limitations  operates  to  create  a  presumption  of  payment  only, 
and  does  not  extinguish  the  original  debt. 

2.  That  what  amounts  to  an  acknowledgment  of  a  debt  to 
take  it  out  of  the  statute  of  limitations,  is  to  be  left  to  the  jury, 

3  That  the  conversations  of  the  defendant  in  this  case, 
amount  to  such  an  acknowledgment  as  is  sufficient  to  take  the 
case  put  of  the  statute. 

On  the  first  point,  he  cited  Sturges  vs.  Crowninshield,  4 
Wheat.  2O7.  Quantock  vs.  England,  5  Burr.  2630.  CVe- 
mentson  vs.  Williams,  8  Cranch,  72.  Lloyd  vs.  Maund,  3 
T.  R.  760.  Mountstephen  vs.  Brooke,  5  Serg.  #  Low.  245. 
Leaper  vs.  Tatton,  16  East,  422.  Halladay  vs.  Ward,  3 
Campb.  32.  2  Stark.  Evid.  892,  893,  895. 

On  the  second  point — Lloyd  vs.  Maund,  2  T.  JR.  760.    De 


208  fcASES  IN  THE  COURT  OP  APPEALS 

OLIVER  v    GRAY.— 1827. 

La  Torre  vs.  Barclay*  2  Serg.  8?  Low.270.  Bicknell  vs.  Kep- 
pel,  4  Bos.  Sf  Pull.  20.  2  Stark.  Evid.  896.  Bryan  vs. 
Horseman,  4  East,  604.  Baillie  vs.  Inchiquin,  1  Esp.  Rep. 
435.  Smith  vs.  Ludlow,  6  Johns.  Rep.  267. 

On  the  third  point — Bryan  vs.  Horseman,  4  East,  599, 
Trueman  vs.  Fenton,  2  Cowp.  548.     Lawrence  vs.  Worrall, 
Peake's  N.  P.  Cases,  93.     2  Stark.  Evid.  893.     Baillie  vs. 
Ld.  Inchiquin,  1  Esp.  Rep.  435,   Leaper  vs.  Tat  ton,  1 6  Eastt 
420.      Clarke  vs.  Bradshaw,  3  jEsjt?.  /?ej».  155-     Jackson  vs. 
Fairbank,  2  H.  Blk.  340.    JFborf  vs.  Braddick,  1  Taunt.  104. 
Smith  vs.  Ludlow,  6  Johns.  Rep.  267.      Dean  vs.  Pitts,  10 
Johns.  Rep.  35.  Anderson  vs.  Sanderson,  3  tferg-.  <§•  £OM>.  190. 
Ward  vs.  Howell,et  al.  5  Harr.  Sf  Johns.  60,  61.      Barney 
vs.  Smith,  4  //am  <£•  Johns.  485.     Norris's  Peake,  420,  &c. 

Raymond,  for  the  Appellee.  Independent  of  the  plea  of 
the  statute  of  limitations,  the  plaintiff  cannot  recover  on  the 
general  issue.  That  plea  is  a  bar  to  his  action. 

1.  The  statute  of  limitations  creates  a  presumption  of  pay- 
ment, which  the  debtor  may  waive;  but  unless  he  does  so,  no 
other  evidence  can  be  received  to  rebut  that  presumption.    The 
debtor  may  waive  the  statute  by  not  pleading  it.     He  may  pro- 
mise to  pay  the  debt..    In  this  case  the  defendant  has  not  waiv- 
ed the  statute  in  either  of  those  ways.     But  it  has  been  said 
that  his  acknowledgment  is  a  waiver.  .  The  making  an   ac-. 
knowledgjment  is  not  a  waiver  of  the  statute.     It  is  not  a  pro- 
mise to  pay  the  debt;  but  only  evidence  from  which  the  jury 
may  infer  a  promise.     If  a  special  verdict  found  that  the  de- 
fendant acknowledged  the  debt,   but  no  promise  is  found,  a 
judgment  could  not  be  rendered. 

2.  It  has  been  contended,  that  what  amounts  to  an  acknow- 
ledgment of  a  debt  to  take  it  out  of  the  statute,  is  to  be  left  to 
the  jury.     This  would  be  to  take  from  the  court  a  question  of 
law,  and  give  it  to  the  jury.     Here  the  court  below  said  the 
acknowledgment  was  not  sufficient  evidence  to  go  to  the  jury, 
for  them  to  infer  a  promise  to  pay  the  debt.     The  evidence  in, 
the  record  was  not  sufficient  to  amount  to  a  waiver  of  the 
statute.     The  plea  of  the  statute  puts  in  issue  not  only  the 
new  promise,  but  the  existence  of  the  original  debt;  and  the 
existence  of  the  original  debt  must  be  proved,  otherwise  the 


OF  MARYLAND.  209 


OLIVKK  v.   ^HAT. — 1827. 


the  new  promise  will  not  be  sufficient.  It  will  be  a  nudutn 
pactum.  If  there  is  proof  that  the  old  debt  has  been  paid, 
then  the  new  promise  amounts  to  nothing.  No  chancellor  or 
jury  could,  on  the  bill  and  answer  offered  in  evidence  in  this 
case,  find  that  the  defendant  owed  the  plaintiff  one  cent. 
There  is  no  acknowledgment  of  a  debt,  so  as  to  take  the  case 
out  of  the  statute,  independent  of  a  promise,  whereby  a  pro- 
mise could  be  inferred.  He  referred  to  Clementson  vs.  Wil- 
liams, 8  Crunch,  72.  Danforth  vs.  Culver,  1 1  Johns.  Rep. 
14G.  Sands,  vs.  Gelson,  15  Johns.  Rep.  511.  Wetzell  vs. 
Bnssard,  11  Wheat.  310.  Laurence  vs.  Hopkins,  13  Johns. 
Rep.  288. 

Gwynn,  on  the  same  side.  What  will  restore  the  remedy 
when  the  action  is  once  barred  by  tha  act  of  limitations?  This 
point  has  not  been  decided  by  this  court.  It  has  been  said  that 
this  judgment  must  be  reversed,  1.  That  the  act  of  limitations 
does  not  extinguish  the  debt,  but  bars  the  remedy.  It  is  a  pre- 
sumption of  payment  if  the  debt  is  not  sued  for  within  three 
years.  2.  That  an  unqualified  acknowledgment  ot  the  debt 
will  take  the  case  out  of  the  statute.  But  what  is  evidence  of 
an  acknowledgment  is  not  to  be  left  to  the  jury;  it  is  for  the 
court.  There  are  only  two  cases  where  the  question  was  left, 
as  a  matter  of  doubt,  to  the  jury.  One  of  those  cases  was  over- 
ruled in  Bicknell  vs.  Keppel,  4 Bos.  $•  Pull.  20.  Coif  man  vs. 
Marsh,  3  Taunt.  380.  It  is  only  in  very  doubtful  cases  where 
the  subject  is  left  to  the  jury.  But  where  the  acknowledgment 
is  accompanied  with  a  denial,  it  is  not  left  to  the  jury.  All 
the  English  cases  go  upon  the  ground  that  the  debt  was  ac- 
knowledged to  be  existing,  and  no  denial  of  it  is  made.  In 
Bryan  vs.  Horseman,  4  East,  599,  the  fact  of  the  acknow- 
ledgment would  not  have  been  sufficient;  and  if  nothing  fur- 
ther had  been  said,  the  case  would  have  been  barred.  The  act 
of  limitations  takes  in  other  actions  as  well  as  assumpsit.  In 
no  case  but  in  assumpsit  can  an  action  be  brought  which  has 
been  barred  by  the  statute.  All  other  actions  are  barred,  and 
no  acknowledgment,  &c.  can  sustain  the  action.  Boydell  vs. 
Drummond,2  Campb.  162.  Rowcroft  vs,  Lomas,  4  Maule 
4*  Selw  4C>7.  This  action  was  brought  in  March  1823,  and 
VOL.  i.  27 


210  CASES  IN  THE  COURT  OF  APPEALS 

OLIVER  v.  GUAY. — 1827. 

the  only  evidence  at  the  trial  was  conversations  which  took 
place  after  the  action  was  brought  between  the  defendant,  and 
the  eounsel  of  the  plaintiff.  That  evidence  furnishes  complete 
proof  that  the  defendant  always  denied  the  debt  to  be  due.  To 
revive  a  debt  barred  by  the  statute,  there  must  be  a  voluntary 
acknowledgment  of  its  existence  without  any  denial  or  condi- 
tion. Wetzell  vs.  Bussard,  11  Wheat.  316,  (note.)  1  Com. 
Dig.  338,  (new  ed.)  The  English  decisions  have  gone  so 
far,  that  if  the  debtor  has  acknowledged  the  debt  to  be  due,  but 
said  he  would  not  pay  it,  it  was  taken  out  of  the  statute.  But 
not  where  the  debtor  denied  the  debt  to  be  due,  although  he 
acknowledged  that  it  had  once  existed.  Norris's  Peake,423. 
Hudson  vs.  Carey,  11  Serg.  4*  Rawle,  10, 13.  2  Stark.  Evid. 
S95,  (note.)  Fries  vs.  Boisselet,  9  Serg.  4*  Rawle,  131. 
Beale  vs.  Rowland,  Hard.  Rep.  301.  The  evidence  in  the 
record  is,  that  within  three  years  the  defendant  said  he  regret- 
ted, &c.  These  conversations  were  after  the  action  was  brought, 
and  after  the  defendant  had  pleaded  the  act  of  limitations,  and 
were  had  with  the  plaintiff's  counsel.  Holme  vs.  Green,  2 
Serg.  4*  Low.  480.  Beale  vs.  Nind,  6  Serg.  $  Low.  517.  Har- 
ney  vs.  Smith,  4  Harr.  4*  Johns.  485,  go  entirely  upon  the  ac- 
knowledgment which  was  made  without  any  denial  of  the  debt 
being  due,  or  refusal  to  pay  it.  It  must  be  with  the  assent  of  the 
defendant  that  he  is  made  liable  for  a  debt  once  barred  by  the 
statute. 

Taney,  in  zeply.  The  prior  debt  relied  on  was  the  promis- 
sory note  upon  which  the  action  was  brought;  and  whether  if 
had  been  paid  or  not  was  a  fact  for  the  jury  to  decide.  Thai 
the  debt  once  existed,  is  proved  positively.  The  evidence  of- 
fered was  read  without-  objection.  The  endorsement  on  the 
bill  filed  in  equity  only,  and  the  answer  thereto,  were  read  m 
evidence.  ' 

The  act  ot  limitations  either  goes  to  the  right  to  recover,  or 
it  bars  the  remedy.  If  the  contract  is  rescinded,  then  the  par- 
ty could  never  recover  on  it.  He  could  only  use  it  in  a  suit 
on  a  new  promise.  An  act  of  bankruptcy  operates  to  the  ex- 
tinguishment of  the  contract;  and  if  a  new  promise  is  made, 
the  party  must  sue  upon  the  new  promise.  In  the  cases  cited 
from  the  New-  York  Reports,  the  suits  were  upon  new  promises. 


OF  MARYLAND.  211 


OLIVER  v.  GHAT.— 1827. 


The  case  of  Sands  vs.  Gelston,  \5johns.  Rep.  519,  was  made 
analogous  to  the  cases  of  bankruptcy.  Stnrges  vs.  Crownin- 
shield,  4  Wheat.  207,  is  in  opposition  to  the  New-York  deci- 
sions. Norris's  Peake,  422,  423,  424,  (and  notes.}  The 
only  operation  of  the  act  of  limitations  is  to  create  a  presump- 
tion that  the  debt  has  been  paid.  2  Stark.  Evid.  891  to  897, 
(and  notes.)  Clementson  vs.  Williams,  S  Cranch,  73,  74. 
^Barney  vs.  Smith,  4  Harr.  $?  Johns.  485.  The  act  of  limi- 
tations does  not  extinguish  .the  debt,  but  only  creates  a  pre- 
sumption of  payment.  This  has  been  repeatedly  decided  by 
the  courts  in  England,  and  in  this  state.  If  the  statute  ought 
to  be  expounded  differently,  yet  having  been  otherwise  ex- 
pounded by  a  series  of  decisions  for  two  centuries,  it  is  a  ju- 
dicial exposition,  and  has  become  a  part  of  the  statute.  This 
court  cannot  overrule  such  decisions,  as  it  woultl  be  to  legislate, 
and  not  to  adjudicate.  The  burthen  of  proof  is  on  the  plain- 
tiff to  prove  that  the  .debt  has  not.  been  paid.  If  it  is  assumed 
that  the  statute  creates  a  presumption  of  payment,  but  does 
not  extinguish  the  debt,  then  it  is  only  necessary  for  the  plain- 
tiff to  prove  that  the  debt  has  not  been  paid.  This  will  repel 
the  presumption  of  payment;  and  it  becomes  a  question  of  fact 
whether  or  not  the  presumption  is  repelled.  If  the  defendant 
acknowledged  that  the  debt  was  once  due,  it  is  not  sufficient 
unless  he  acknowledged  he  had  not  paid  it.  In  Boy  dell  vs. 
Drummond,  2  Campb.  162.  Rowcroftvs.  Lomas,  4  Maule 
fy  Selw.  457,  and  Clementson  vs.  Williams,  8  Crunch,  72, 
the  evidence  was  only  that  the  debt  once  existed.  Where  the 
acknowledgment  admits  the  debt  was  originally  due,  and  had 
not  been  paid,  it  will  remove  the  bar  of  the  act  of  limitations. 
Wetzellvs.  Bussard,  11  Wheat.  310,  313.  Where  a  party 
refers  to  a  mode  of  settlement,  which  is  proved  to  be  false,  the 
statute  is  no  bar.  2  Stark.  Evid.  894,  (note.)  895.  Here  the 
defendant  alleged  that  the  debt  sued  for  had  been  discharged  in  a 
particular  way,  which  has  been  disproved  by  the  plaintiff's  an- 
swer to  the  bill,  which  the  defendant  and  his  partner  had  filed 
against  him,  as  given  in  evidence  at  the  trial  of  this  case.  Why 
should  this  presumption  of  payment  be  distinguished  from 
other  presumptions?  It  is  not  a  conclusive  presumption,  not 
to  be  repelled,  but  is  to  be  left  to  the  jury.  Many  of  the  cases 


212  CASES  IN  THE  COURT  OF  APPEALS 

OLIVER  v.   GRAY — 1827 

cited  assume  the  principle  that  it  was  sufficient  to  be  left  to  the 
jury  whether  or  not  payment  had  been  made.  Any  evidence 
from  which  the  jury  might  infer  that  payment  had  not  been 
made,  was  admissible;  aad  if  the  jury  found  that  payment  had 
not  been  made,  then  the  statute  was  no  bar.  If  it  is  assumed 
as  the  doctrine  that  the  statute  goes  upon  the  presumption  of 
payment,  it  must  be  dealt  with  like  all  other  presumptions;  and 
if  so  it  is  to  be  rebutted  by  evidence  upon  which  the  jury  aro 
to  decide.  It  is  not  for  the  court  to  say  whether  an  acknow- 
ledgment was  or  was  not  sufficient  to  rebut  the  presumption  of 
payment.  If  it  is  a  question  for  the  court  to  decide,  then  there 
must  be,  first,  proof  of  the  debt;  and  secondly,  proof  of  the 
acknowledgment  of  the  defendant  that  the  debt  had  not  been 
paid.  The  question  then  is,  was  the  proof  sufficient  to  esta- 
blish that  the  debt  had  not  been  paid?  Wetzell  vs.  Bussard, 
11  Wheat.  310.  There  is  no  evidence  that  the  defendant  paid 
the  debt,  but  he  said  he  did  not  consider  himself  indebted  to  the 
plaintiff,  because  the  plaintiff  had  it  in  his  power  to  save  himself. 
This  is  a  clear  admission  that  the  debt  had  not  been  paid.  The 
qualification  made  by  the  defendant  was  evidence  to  rebut  the 
presumption  of  payment.  The  answer  to  his  bill  in  equity 
proves  that  the  debt  had  not  been  paid.  2  Stark.  Evid.  894, 
895.  Foe  vs.  Conway's  rfdm'r.  2  Harr.  4*  Johns.  307. 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  Court.  The 
appellee  rests  his  defence  upon  the  act  of  limitations  of  this 
state,  on  the  effect  and  operation  of  which  we  are  called  upon, 
to  decide;  and  we  approach  the  subject  not  without  hesitation, 
surrounded  and  obscured  as  it  is,  by  a  cloud  of  discordant  ad- 
judications. Perhaps  there  is  not  a  British  statute  which  has 
given  birth  to  so  many  conflicting  decisions,  as  the  statute  of  the 
21  James  I,  ch.  16,  the  statute  of  limitations  of  that  country; 
and  we  are  familiar  with  the  expressions  of  regret,  by  the  emi- 
nent men  who  have  sat  in  the  judicial  tribunals  there,  that  the 
letter  of  that  statute  was  ever  departed  from;  a  regret  for  which 
sufficient  cause  is  to  be  found  in  the  incongruity  presented  by 
the  numerous  decisions  on  that  branch  of  the  law. 

The  statute  of  James  was  never  held  in  England  to  extin- 
guish the  debt,  but  was  always  understood  as  operating  upoa 


OF  MARYLAND.  213 


OLIVER  v    GRAY.— 1827. 


the  remedy  only.  In  Healing  vs.  Hastings,  1  Ld.  Raymond, 
3Stf,  Holly  Chief  Justice,  said  that  "the  statute  of  limitations 
was  founded  upon  very  good  reason,  because  men  should  not 
unravel  contracts  so  long  after,  upon  a  supposition,  that  if  they 
were  not  paid,  they  would  sue  sooner;  and  acquittances  being 
subject  to  be  lost,  a  man  might  be  sued  for  what  he  had  paid 
before."  In  Quantock  vs.  England,  5  Burr.  2628,  Lord 
Mansfield  said,  "it  was  settled  that  the  statute  of  limitations 
did  not  destroy  the  debt,  but  only  took  away  the  remedy." 
In  Mountstephen  vs.  Brooke,  5  Serg.  <$•  Low,  245,  Jlbbottt 
Chief  Justice,  said,  "the  statute  was  passed  to  protect  persons 
who  were  supposed  to  have  paid  the  debt,  but  to  have  lost  the 
evidences  of  such  payment.'3  Hence  after  a  consultation  with 
all  the  judges,  but  one,  it  was  stated  by  Lord  Holt,  in  Hey* 
ling  vs.  Hastings,  1  Lord  Raymond,  421,  to  be  their  unani- 
mous opinion,  that  a  promise  by  the  defendant,  at  any  time 
within  six  years  before  the  commencement  of  the  action,  to  pay 
the  debt,  was  sufficient  to  take  the  case  out  of  the  statute.  But 
that  a  bare  acknowledgment  of  the  debt  within  that  period 
was  held  to  be  evidence  only  of  a  promise,  and  therefore  not 
of  itself  sufficient.  This  distinction  prevailed  for  a  long  time, 
but  was  at  length  broken  down,  and  ceased  to  be  regarded. 

In  Yea  vs.  Fouraker,  2  Burr.  1099,  it  was  ruled  that  an  ac- 
knowledgment of  the  debt,  even  after  the  commencement  of  the 
action,  took  it  out  of  the  statute  ot  limitations.  In  Quantock 
vs.  England,  a  submission  to  a  commission  of  bankruptcy  by 
a  debtor,  after  the  debt  had  been  of  more  than  six  years  stand- 
ing, was  held  to  be  a  waiver  of  the  benefit  of  the  statute,  and 
such  an  acknowledgment  as  took  the  case  out  of  it;  and  Lord 
Mansfield  said,  that  the  slightest  word  of  acknowledgment 
would  do  it.  And  in  Trueman  vs.  Fenton,  2  Cowp.  548,  he 
said,  "the  slightest  acknowledgment  has  been  held  sufficient; 
as  saying,  prove  your  debt  and  I  will  pay  you;  I  am  ready  to 
account,  but  nothing  is  due  to  you.  And  much  slighter,  ac- 
knowledgments than  these  will  take  a  debt  out  of  the  statute. " 

These  cases  have  been  followed  by  a  series  of  decisions  from 
that  time  to  this,  by  which  this  principle  at  least  is  now  fully 
settled,  that  an  acknowledgment  of  the  debt  by  the  defendant, 
within  six  years  before  the  bringing  of  the  suit,  is  sufficient  to 


214  CASES  IN  THE  COURT  OF  APPEALS 

OLIVER  r.   GRAY. — 1827. 

take  the  case  out  of  the  statute  of  limitations;  and  very  slight 
evidence,  indeed,  of  an  acknowledgment,  has  sometimes  been 
deemed  sufficient.  In  Leapervs.  Tatton,  16  East,  420,  Lord 
Ellenborough  said,  "as  the  limitation  of  the  statute  is  only  a 
presumption  of  payment,  if  his  own  acknowledgment  that  he 
has  not  paid  be  shown,  it  does  away  the  statute."  In  Sluby 
vs.  Champlin,  4  Johns.  Rep.  461,  Yates,  Justice,  who  deliver- 
ed the  opinion  of  the  court,  said,  "it  is  now  generally  receiv- 
ed as  law,  that  if  a  party  acknowledges  a  debt  to  be  unpaid,  it 
is  such  a  waiver  of  the  protection  of  the  statute  as  to  repgl  the 
presumption  of  payment,  being  a  recognition  of  the  former  lia- 
bility." AncJ  in  Sturgesvs.  Croivninshield,  4  Wheat.  207, 
Chief  Justice  Marshall  said,  "statutes  of  limitations  relate  1o 
the  remedies  which  are  furnished  in  the  courts.  They  rather 
establish,  that  certain  circumstances  shall  amount  to  evidence 
that  a  contract  has  been  performed,  than  dispense  with  its  per- 
formance." 

Since  the  case  of  Sluby  vs.  Champlin,  the  distinction  which 
formerly  prevailed  in  England  between  a  promise  to  pay,  and 
an  acknowledgment  of  the  debt,  has  been  revived  in  Netv- 
Yurk;  and  now,  both  in  that  state,  and  in  Pennsylvania,  the 
latter  is  held  to  be  evidence  only,  to  be  left  to  the  jury,  of  a 
promise  to  pay.  Proceeding  upon  that  principle,  it  seems  to 
be  settled  in  those  states,  that  though- a  slight  acknowledgment 
of  the  debt,  when  standing  alone,  will  be  sufficient,  yet  that  if 
the  debtor  qualifies  his  acknowledgment  in  such  a  manner  as  to 
show  it  is  his  determination  not  to  pay,  the  statute  will  protect 
him;  as  where  a  man  admits  the  debt  to  be  due,  but  declares 
that  he  intends  to  insist  on  the  benefit  of  the  statute.  ( Murry 
vs.  Tilly,  cited  with  approbation  in  fries  vs.  JBoisselet,  9  Sergt. 
#  Rawle.  131;)  or  admitting  it  to  be  due,  declares  that  he  will 
not  pay  it — as  in  Fries  vs.  Boisselet,  where  the  proof  was  that 
the  defendant  on  being  arrested,  said  he  owed  the  plaintiff 
the  fnoney,  and  intended  to  have  paid  him,  but  that  he  had 
taken  un gentlemanly  steps  to  get  it,  and  as  he  had  taken  those 
steps  he  would  keep  him  out  of  it  as  long  as  he  could;  which 
was  held  not  to  be  sufficient  to  take  the  case  out  of  the  statute. 
And  the  same  principle  is  fully  recognized  in  Sands  vs.  Gel- 
ston,  15  Johns.  Rep.  511,  and  Roosebelt  vs.  Mark,  6  Johns. 


OF  MARYLAND.  215 


OLIVER  v.   GRAY.— 1827. 


Ch.  Rep.  2GG.  The  only  difference  between  the  act  of  limi- 
tations in  this  state,  and  the  statute  of  James  is,  that  here  the 
limitation  is  but  three  years;  and  in  this  state,  the  rule  prevail- 
ing in  England,  that  an  acknowledgment  .of  the  debt  by  the 
defendant  within  the  time  prescribed  for  bringing  the  suit,  is 
sufficient  to  take  the  case  out  of  the  statute,  has  been  adopted. 
In  Barney  vs.  Smith,  4  Harr  8?  Johns.  485,  the  venerable 
man  who  then  presided,  Judge  Chase,  said  "the  act  of  limita- 
tions does  not  operate  to  extinguish  the  debt,  but  to  bar  the 
remedy.  The  act  of  limitations  proceeds  upon  the  principle, 
that  from  length  of  time  a  presumption  is  created,  that  the  debt 
has  been  paid,  and  the  debtor  is  deprived  of  his  proof  by  the 
death  of  his  witnesses,  or  the  loss  of  receipts.  It  is  the  design, 
of  the  act  of  limitations  to  protect  and  shield  debtors  in  such 
a  situation;  and  consistent  with  this  principle  and  this  view,  the 
decisions  have  been  made,  that  the  acknowledgment  or  admis- 
sion of  the  debt  will  take  the  case  out  of  the  act  of  limitations; 
because,  if  the  money  is  still  due  and  owing,  the  defendant  has 
not  suffered  from  the  lapse  of  time,  nor  has  any  inconvenience 
resulted  to  him  therefrom."  And  again,  in  another  part  of  his 
opinion,  he  says,  "the  acknowledgment  to  the  surviving  part- 
ner saves  and  preserves  the  remedy  in  the  survivor,  and  avoids 
the  bar  by  the  act  of  limitations.  It  does  not  create  a  new 
assumpsit,  but  is  a  saving  of  the  remedy  on  the  original  pro- 
mise." We,  therefore,  are  not  called  upon  now  for  the  first 
time  to  give  a  construction  to  that  act;  that  task  has  been  per- 
formed by  others,  at  whose  hands  we  have  received  it,  with 
their  interpretation  of  it,  from  which,  if  we  were  disposed  to 
do  so,  we  should  not  feel  ourselves  at  liberty  to  depart. 

Perhaps  it  would  have  been  better,  if  instead  of  endeavour- 
ing to  rescue  particular  cases  out  of  its  operation,  the  letter  of 
the  statute  had  been  strictly  adhered  to;  if  the  original  debt 
had  always  been  considered  as  extinguished,  and  the  moral  ob- 
ligation, treated  as  a  sufficient  consideration  for  an  express  pro- 
mise to  pay,  on  which  to  found  an  action.  But  according  to 
all  the  cases,  (for  in  this  at  least  they  agree,)  the  debt  is  ccfnsi- 
dered  as  not  extinguished,  and  the  defendant  can  only  avail 
himself  of  the  statute  in  England,  and  act  of  assembly  here, 
by  pleading  it;  which,  if  he  omits  to  do,  it  is  held  to  be  a  waiv- 


216  CASES  IN  THE  COURT  OP  APPEALS 

OLIVER  v.  GRAY.  — 1827. 

er  of  its  benefit,  and  the  plaintiff  may  recover  on  the  general 
issue,  though  the  debt  should  appear  by  the  declaration  to  be  of 
longer  standing  than  the  limited  period.  This  settled  con- 
struction has  producpd  all  the  difficulties  and  discrepancies  com- 
plained of;  but  it  is  a  construction  which  is  not  now  to  be  shak- 
en by  us:  nor  on  the  other  hand  should  its  operation  be  ex- 
tended further  than  it  has  already  gone. 

Taking  the  act  of  limitations,  then,  as  we  find  it,  operating 
upon  the  remedy  only,  and  not  as  extinguishing  the  debt;  and 
feeling  the  necessity  for  a  more  definite  and  certain  understand- 
ing of  the  effect  of  the  adopted  construction,  than  can  easily 
be  collected  from  particular  cases,  we  will  endeavour,  not  to 
reconcile  the  various  decisions  that  are  to  be  found  in  the 
books  on  this  subject,  but  to  lay  down  some  general  rules  for 
the  practical  application  of  the  principles  they  establish;  that 
the  act  does  not  extinguish  the  debt,  but  only  bars  the  remedy, 
and  that  an  acknowledgment  by  the  defendant  of  the  debt,  or 
a  promise  to  pay  it  within  the  time  prescribed,  is  sufficient  to 
revive  the  action. 

First,  then,  the  suit  is  to  be  brought  on  the  original  cause 
of  action,  and  not  on  the  new  promise  or  acknowledgment, 
which  only  has  the  effect  to  restore  the  remedy;  which  is  not 
only  according  to  the  common  practice,  but  is  directly  and 
strongly  asserted  in  Barney  vs.  Smith. 

Second.  It  need  not  be  absolute  and  unconditional,  but  a  con- 
ditional promise  is  sufficient;  and  in  such  case,  it  is  incumbent 
on  the  plaintiff  to  show  at  the  trial,  either  a  performance  of  the 
conditioner  a  readiness  to  perform  it;  as  if  the  words  be, 
prove  your  debt,  and  I  will  pay  you,  which  is  an  express  pro- 
mise to  pay,  on  condition  that  the  debt  is  proved.  Hey  ling 
vs.  Hastings,  1  Ld.  Raymond,  389.  Trueman  vs.  Fenton, 
2  Cowper,  548.  Davles  vs.  Smith,  4  Espinasse  Rep.  36  Low- 
eth  vs.  Pothergill,  4  Camp.  Rep.  185.  Bush  vs.  Barnard,  S 
Johns.  Rep.  407.  These  cases  furnish  different  examples  of 
conditional  promises  to  pay,  each  of  which  was  held  sufficient 
to  take  the  case  out  of  the  statute. 

Third.  An  acknowledgment,  to  take  the  case  out  of  the  act 
of  limitations,  must  be  of  a  present  subsisting  debt,  unaccom- 
panied by  any  qualification  or  declarations,  which,  if  true, 


OF 


OLIVER  v.  GRAT-— 1827. 


•would  exempt  the  defendant  from  a  moral  obligation  to  pay. 
fror  the  law  will  not  raise  an  assumpsit,6r  imply  a  promise  to 
pay,  what  in  equity  and  good  conscience  a  man  is  not  bound  to 
pay.  As  if  the  defendant  admits  the  debt,  but  at  the  same 
time  resists  the  payment  of  it  by  alleging  that  he  has  a  set-off 
against  it,  and  that  the  plaintiff  owes  him  more  money;  which 
virtually  amounts  to  a  denial  of  his  liability,  and  a  refusal  to 
pay  any  part  of  it,  on  grounds  furnishing  a  sufficient  moral  ex- 
cuse for  not  paying  it.  And  indeed,  taking  the  whole  of  the 
acknowledgment  together,  (which  must  always  be  clone,)  is  in 
effect  equivalent  to  a  declaration  that  the  debt  is  discharged. 
If  it  were  otherwise,  and  the  plaintiff  was  permitted  to  avail 
himself  of  the  acknowledgment  of  the  debt,  and  to  reject  the 
qualification,  injustice  would  always  be  done  where  the  set-off, 
claimed  by  the  defendant,  should  be  itself  barred  by  the  act,  or 
he  should  be  in  want  of  testimony  sufficient  to  support  it.  Or, 
if  he  admits  the  receipt  of  money,  and  that  it  has  not  been 
paid,  but  claims  it  as  a  gift;  which,  if  true,  would  exempt  him 
from  any  liability  to  pay.  Or,  if  on  being  called  upon,  the 
party  says  he  has  paid  the  debt,  and  will  furnish  the  receipt, 
but  fails  to  do  so,  this  will  not  be  sufficient  to  charge  him;  but 
is  the  very  case  intended  to  be  provided  for  by  the  act,  the  case 
of  a  man  who  is  supposed  to  have  lost  his  evidence  of  pay- 
ment. 

Fourth.  An  acknowledgment  of  the  debt,  with  a  naked  re- 
fusal to  pay,  or  a  refusal  accompanied  with  an  excuse  for  not 
paying  it,  which  in  itself  implies  an  admission  that  the  debt  re- 
mains due,  and  furnishes  no  real  objection  to  the  payment  of 
it,  is  sufficient. 

Fifth.  Any  unqualified  acknowledgment  of  a  present  sub- 
sisting debt,  or  acknowledgment,  with  no  other  excuse  for  not 
paying  it  than  a  reliance  on  the  bar  created  by  the  act  of  li- 
mitations, is  sufficient  to  take  it  out  of  the  act.  Clarke  vs. 
Bradshaw  fy  Coghlan,  3  Esp.  Rep.  155.  Bryan  vs.  Horse- 
man, 4  East,  599.  Evans,  in  the  notes  to  his  translation  of 
Pothier  on  Obligations,  suggests  to  those  whose  claims  are 
barred  by  the  statute,  and  who  wish  to  obtain  an  acknowledg- 
ment of  the  subsistence  of  the  debt,  the  utility  of  filing  a  bill 
of  discovery,  and  adds,  "if  the  subsistence  of  the  debt  is  ad- 
voj,.  1  28 


218  CASES  IN  THE  COURT  OF  APPEALS 

OLIVER  v.  GRAT.— 1827. 

mitted,  and  without  perjury  it  cannot  be  denied,  it  will  not,  if 
there  is  any  consistency  of  decision,  be  of  any  avail  to  add  a 
claim  to  the  protection  of  the  statute." 

The  act  of  limitations,  according  to  the  received  constructi- 
on, proceeds  upon  the  supposition,  that  from  length  of  time  the 
debt  is  paid,  and  was  only  intended  to  protect  a  party  where  the 
presumption  arising  from  lapse  of  time  is,  either,  that  the  debt 
has  been  discharged,  or  never  existed,  and  not  to  protect  him 
from  a  debt  acknowledged  by  himself  to  be  still  due  and  un- 
paid, with  no  other  excuse  for  not  paying  it  than  the  supposed 
bar  created  by  the  act.  When,  therefore,  a  party  admits  the 
debt  to  be  due,  but  standing  upon  the  act  of  limitations  alone, 
in  the  same  breath  refuses  to  pay  it,  he  admits  a  case,  to  which 
the  act,  according  to  its  spirit  and  reason,  does  not  apply,  under 
the  interpretation  given  to  it,  and  his  refusal  cannot  avail  him. 
But  the  continuing  existence  of  the  debt  continues  and  carries 
with  it  the  implied  assumpsit  that  the  law  raises,  which  is  not 
rebutted  by  his  refusal  to  pay.  Hence  the  very  common 
use  in  the  books  of  the  terms  "takes  the  case  out  of  the  sta- 
tute of  limitations;"  that  is,  that  it  is  a  case  not  embraced  by 
the  statute. 

Sixth.  The  acknowledgment  of  the  debt  may  be  in  whole 
Or  in  part 

Seventh.  It  is  sufficient  if  it  be  after  the  bringing  of  the 
suit  Yea  vs.  Fouraker,  2  Burr.  1099.  Which  could  not  re- 
gularly be  if  it  stood  upon  the  footing  alone  of  evidence  only 
of  a  new  promise,  the  replication  being  assumpsit  infra  tres 
annos  before  the  bringing  of  the  suit,  and  confining  the  issue 
to  a  time  within  that  period;  so  that  an  acknowledgment,  made 
after  the  bringing  of  the  suit,  would  not  be  within  the  issue. 
The  issue,  therefore,  in  such  a  case,  must  be  sustained  on  the 
part  of  the  plaintiff,  on  the  idea  of  an  implied  promise,  con- 
tinuing and  running  with  the  old  debt  acknowledged  to  be  still 
due. 

Eighth.  An  admission  that  the  sum  claimed  has  not  been 
paid,  is  not  sufficient  without  some  further  admission,  or  other 
proof,  thaf  the  debt  once  existed. 

Ninth.  The  acknowledgment  need  not  be  made  to  the  plain- 
tiff himself,  but  may  be  made  to  any  body  else. 


OF  MARYLAND.  319 


OLIYKR  v    GHAT.— 1827. 


Tenth.  What  kind  of  promise  or  acknowledgment  is  suffi- 
cient to  take  a  case  out  ol  the  act  of  limitations,  is  for  the  court 
to  decide;  and  the  evidence  offered  to  prove  such  promise  or 
acknowledgment,  is  proper  to  be  submitted  to  the  jury,  as  ia 
other  cases,  under  the  direction  of  the  court. 

It  has  been  contended  in  this  case,  that  where  the  defendant 
alleges  the  debt  to  have  been  discharged,  and  refers  to  a  parti- 
cular mode  of  discharge,  the  plaintiff  may  entitle  himself  to 
recover  by  disproving  the  mode  of  discharge  referred  to.  We 
are  aware  that  the  same  has  been  said  efsewhere.  In  Hellings 
vs.  Shaw,  2  Serg.  4*  Low.  236,  Chief  Justice  Gibbs  said, 
"where  the  defendant  has  stated,  not  that  the  debt  remained 
due,  but  that  it  was  discharged  by  a  particular  means,  to  which 
he  has  with  precision  referred  himself,  and  where  he  has  desig- 
nated the  time  and  mode  so  strictly,  that  the  court  can  say  it  is 
impossible  it  had  been  discharged  in  any  other  mode.  There 
the  court  have  said,  if  the  plaintiff  can  disprove  that  mode,  he 
lets  himself  in  to  recover,  by  strikrng  from  under  the  defen- 
dant the  only  ground  on  which  he  professes  to  rely."  But  af- 
terwards, in  Beetle  vs.  Nind,  6  Serg.  fy  Low.  517,  Justice  Bay- 
ley,  afser  reciting  the  words  of  Chief  Justice  Gibbs,  says,  "I 
certainly  am  not  aware  of  the  cases  to  which  my  Lord  Chief 
Justice  Gibbs  refers  to  support  that  proposition."  Thus  strong- 
ly questioning  the  soundness  of  the  proposition,  to  which,  (see- 
ing the  inroads  that  have  already  been  made  upon  the  statute, 
•which  we  are  not  disposed  to  push  any  farther,  and  no  such  de- 
cision having  been  made  by  this  court,)  we  are  not  prepared  to 
yield  our  assent;  but  think  that  every  acknowledgment  of  a 
debt,  which  is  offered  to  take  a  case  out  of  the  act  of  limitati- 
ons, must  be  taken  all  together;  and  that  no  evidence  can  be  re- 
ceived to  turn  a  denial  of  the  existence  of  the  debt  into  an 
acknowledgment  of  a  subsisting  liability,  by  proving  that  he 
was  mistaken  in  supposing  it  to  have  been  paid.  Which  would 
be  to  take  a  case  out  of  the  act  of  limitations  by  other  proof 
than  the  acknowledgment  of  the  party;  for  in  such  a  case  he 
manifestly  not  only  does  not  intend  to  acknowledge  a  present 
subsisting  debt,  but  in  fact  denies  it,  and  there  is  nothing  to 
carry,  or  on  which  the  law  can  raise  an  implied  assumpsit. 
The  declarations  of  the  defendant  are  the  plaintiff's  own  proof. 


220  CASES  Itf  THE  COURT  OF  APPEALS* 

— .  I  .'  •         "  .1111  ._» 

DRCBT  v.   CONNER — 1827. 

and  if  he  chooses  to  introduce  them,  he  must  be  content  to 
take  them  as  they  are,  and  cannot  be  permitted  to  disprove 
them  by  other  evidence,  in  order  to  raise  an  implied  promise, 
or  to  iurnish  evidence  of  a  promise  to  pay  a  debt,  the  exist* 
ence  of  which  is  denied.  With  these  views  of  the  subject  we 
do  not  think,  from  the  evidence  set  out  in  the  record,  that  the 
plaintiff  is  entitled  to  recover.  Whatever  might  have  been  the 
effect  of  the  expressions  of  regret  by  the  defendant,  if  they 
stood  alone,  "that  the  plaintiff  had  been  excluded  from  the 
deed  of  trust,  and  had  not  been  allowed  to  come  in  for  his 
claim,"  the  declarations,  always  accompanying  them,  "that  he 
did  not  consider  that  he  was  indebted  to  the  plaintiff,  because  he 
had  it  in  his  power  to  have  saved  himself  with  the  securities  re- 
ceived from  William  Taylor,  and  ought  not,  therefore,  to  have 
looked  to  him  for  the  money,"  sufficiently  show  that  it  never 
was  his  intention  to  acknowledge  the  claim  of  the  plaintiff  as  a 
subsisting  debt  due  by  him,  but  on  the  contrary,  taken  toge- 
ther, amounted  to  a  denial  of  any  existing  liability  on  him  to 
pay;  and  for  a  reason,  which,  if  true,  furnished  a  real  objection, 
and  sufficient  excuse  for  not  paying  it.  For,  if  the  plaintiff 
had  in  his  hands  securities  with  which  he  should  and  might 
have  covered  the  amount  of  his  claim,  but  from  negligence  or 
misapplication  of  the  funds  did  not  do  so,  he  should  not  now 
look  to  the  defendant  for  it;  nor  can  he  be  permitted  by  evi- 
dence of  the  insufficiency  of  those  securities  to  convert  the  de- 
fendant's denial  of  his  liability  into  an  acknowledgment  of  a 
present  subsisting  debt, 

JUDGMENT  AFFIRMED. 


DRURT  vs.  CONNER. — June,  1827. 

Whoever  enters  upon  the  estate  of  an  infant,  is  considered  in  equity  as  en- 
tering as  his  guardian;  and  after  the  infant  comes  of  age,  he  may  by  bill 
in  chancery  recover  the  rents  and  profits.  If  a  person  so  entering  shall 
continue  the  possession  after  the  infant  comes  of  age,  chancery  will  de- 
cree an  account  against  him  as  guardian,  and  carry  on  such  account  after 
the  infancy  is  determined. 

$ne  who  never  occupied  an  estate,  nor  derived  any  advantage  from  it,  but 
merely  rented  it  out,  and  collected,  and  paid  over  the  rent  as  it  came 
into  his  hands,  as  the  friend  and  connexion  of  another,  for  whose  esc  h,«_ 


6P  MARYLAND.  221 


DHURT  v.  CONNER. — 1827. 


received  the  rent,  and  to  whom  he  was  hound  to  pay  it  over  as  agent,  is 
not  r  sponsi  Me  in  equity,  for  mesne  profits,  to  the  owner  of  such  estate. 
It  is  true,  as  a  general  position,  that  chancery  will  not  entertain  a  hill,  where 
there  is  a  full  and  complete  remedy  at  law,  and  no  ground  is  shown  for 
going  into  equity;  and  ordinarily  a  bill  for  mesne  profits,  after  recovery 
in  ejectment,  showing  no  obstacle  at  law,  and  stating  no  ground  of  equita- 
ble relief,  would  on  plea  or  demurrer,  and  perhaps  at  the  final  hearing 
•without  either,  unc'er  the  practice  of  this  state,  be  dismissed,  tnere  being 
an  adequate  remedy  at  law 

APPEAL  from  the  Court  of  Chancery.  The  bill,  filed  on  the 
14th  of  October  1819, 'by  the  appellee  against  the  appellant, 
stated  that  William  Conner,  the  father  of  the  complainant, 
died  intestate  in  the  year  1799  or  1800,  seized  in  fee  of  a  tract 
of  land  lying  in  Anne-Jlrunde.1  county,  called  Holloway,  or 
Oliver's  Preservation,  containing  147  acres,  which  descended 
to  the  complainant,  and  his  brother  Marmaduke,  and  his  sis- 
ters Harriet,  Nancy  and  Matilda.  That  Henry  C.  Drury, 
the  defendant,  being  then  in  possession  of  the  said  tract  of  land, 
and  holding  and  claiming  it  under  a  certain  Frederick  Mills, 
one  of  whose  daughters  he  married,  and  receiving  the  rents  and 
profits  thereof,  the  complainant,  and  the  said  Marmaduke, 
Harriet,  Nancy  and  Matilda,  on  the  12th  of  Juiuary  1816, 
instituted  an  action  of  ejectment  in  J2nne-v%rundel  county  court 
against  him  for  the  recovery  of  the  said  land;  and  on  the  27th 
C>f  September  1819,  recovered  the  same — each  his  or  her  un- 
divided fifth  part,  by  the  judgment  of  the  said  court.  That  a 
writ  of  habere  facias  possessionem  issued,  and  possession  was 
had  by  the  complainant,  and  the  said  Marmaduke,  Harriet^ 
Nancy  and  Matilda.  The  bill  then  charges,  that  the  defen- 
dant had  been  in  possession  of  the  said  land  a  long  time  previ- 
ous to  the  institution  of  the  said  action  of  ejectment,  and  sub- 
sequently to  the  death  of  the  complainant's  father,  and  so  re- 
mained in  possession  until  the  execution  of  the  said  writ  of 
habere  facias  possessionem,  during  which  time  he  received 
the  rents  and  profits  of  the  same,  and  cut  down  and  sold  a  great 
quantity  of  wood  and  timber  of  yarious  description,  which  was 
growing  thereon,  and  received  the  purchase  money  therefor. 
The  bill  then  states,  that  the  complainant  has  not  long  attained 
the  age  of  21  years,  to  wit,  within  three  years  from  the  insti- 
tution of  the  said  action  of  ejectment,  and  from  the  filing  of  the 
present  bill;  and  that  during  the  whole  period  of  the  possession 


CASES  IN  THE  COURT  OF  APPEALS 


DHUBT  v.  CONNER.  —  1827. 


of  the  defendant,  the  complainant  was  a  minor,  under  the  age 
of  21  years;  and  the  defendant  received  the  rents  and  profits 
of  the  said  land  as  guardian  of  thfi  complainant,  though  he  had 
not  been  legally  appointed.  Prayer,  that  the  defendant  may 
be  compelled  to  account,  &c.  and  for  general  relief. 

The  answer  of  the  defendant  stated,  that  William  Conner, 
deceased,  the  father  of  the  complainant,  and  Marmaduke,  &c. 
at  the  time  of  his  death,  possessed  a  legal  estate  in  fee  simple 
in  the  land  mentioned  in  the  bill;  but  that  he  never  was  in  the 
actual  possession  thereof;  that  in  his  lifetime  he  sold  all  his  in- 
terest therein  to  Frederick  Mills,  since  deceased,  for  a  full  and 
valuable  consideration,  although  no  conveyance  was  ever  exe- 
cuted for  the  same.  That  the  said  Mills  left  issue  four  chil- 
dren, viz.  Jlchsah,  Jinn,  Elizabeth,  who  is  the  wife  of  the  de- 
fendant, and  Frederick,  and  died  in  the  peaceable  and  undis- 
turbed possession  of  the  premises,  which  vested  in  his  said 
children.  That  from  the  1st  of  January  1813,  the  defendant, 
by  virtue  of  an  assignment  from  the  said  Jlchsah,  and  in  the 
right  of  his  wife,  was  possessed  of  one  moiety  of  the  premises 
until  he  was  dispossessed  thereof  as  is  stated  in  the  bill.  That 
it  is  not  true  that  the  defendant  did  cut  down  and  sell  wood  and 
timber  from  off  the  said  premises;  but  that  he  did  receive  the 
one-half  of  the  rents  and  profits  of  the  said  premises  for  the 
space  of  six  years,  amounting  in  the  whole  to  $600.  That  he 
considers  himself  entitled  to  the  same  by  virtue  of  the  said  as- 
signment from  the  said  Jidhsah,  and  in  the  right  of  his  wife 
Elizabeth.  That  he  and  his  tvife  Elizabeth,  and  the  other 
eo-heirs  of  Frederick  Mills,  heretofore  exhibited  and  filed  their 
bill  of  complaint  in  the  court  of  chancery  against  the  complain- 
ant, and  the  other  co-heirs  of  William  Conner,  deceased,  to 
compel  a  specific  performance  of  the  said  contract  for  the  sale 
of  the  said  premises  so  entered  into  as  aforesaid  by  Frederick 
Mills  and  William  Conner,  in  their  respective  lifetimes,  and 
which  bill  of  complaint  .is  still  depending  in  the  said  court. 
The  defendant  denies  that  he  ever  was  in  law  or  in  fact  the 
guardian  of  the  complainant;  and  he  denies  the  right  of  the  com- 
plainant to  compel  him  to  account  for  the  rents  and  profits  of 
the  said  premises,  or  of  any  part  thereof. 

A  commission  issued  by  consent  to  take  testimony,  and  tes- 


OF  MARYLANB.  £23 


DRCJIY  v.  COXNER. — 1827. 


timony  was  taken  and  returned  thereunder.  The  material  facts 
proved  under  it  will  appear  from  the  opinion  delivered  by  the 
Chief  Judge  of  this  Court. 

JOHNSON,  Chancellor,  (July  term,  1822,)  Decreed,  that  the 
defendant  account  to  and  with  the  complainant  of  and  concern- 
ing the  matters  charged  in  the  bill;  and  that  the  account  be 
stated  from  the  evidence  already  taken  under  the  commission, 
and  that  which  may  be  taken  before  the  auditor.  The  account 
to  be  taken,  reserving  all  equity  at  the  final  hearing. 

The  auditor  reported  two  accounts,  the  one  on  which  the  chan- 
cellor's decree  was  grounded — Account  B.  charged  the  defen- 
dant on  the  1st  of  January  1819,  "to  rents  and  profits  of  one 
moiety  of  Holloway,  or  Oliver's  Preservation,  for  7  years 
from  1st  of  January  1S12,  viz.  at  $90,  per  annum,  $630 
1824.  Dec.  6.  To  interest  on  $90,  part  thereof  . 

from  the  1st  of  January  1813,         337  58 


By  Henry  C.  Drury,  (the  defendant,) 
in  right  of  his  wife,  and  of  tftchsah 
Mills,  for  i 

By  ditto  as  assignee  of  Matilda  Conner 
for  j.  of  the  balance,  169 

By  Wm.  W.  Conner,  (the  complain- 
ant,) ditto,  169 

By  Marmaduke  TV.  Conner,  ditto,         169 

By  John  Franklin,  &  Harriet  his 
wife,  ditto,  169 

By  Sabritt  Trott,  &  Nancy  his  wife, 
ditto,  169 


$967  58 
To  amount  due  to  the  complainant,  $169  33 

To  interest  on  $110  25,  part  thereof  from  the  6th  of  Decem- 
ber 1824,  until  paid." 

Each  of  the  parties  excepted  to  the  auditor's  accounts  and 
report.  And  afterwards  two  exhibits  were  filed — one,  the  re- 
cord of  the  recovery  in  ejectment  brought  by  the  complainant 
and  others  against  the  defendant,  as  referred  to  in  the  bill,  and 


CASES  IN  THE  COURT  OP  APPEALS 


DHURY  v    CONNER.  —  1827. 


the  other,  a  decree  of  the  court  of  appeals,   on   the  appeal  of 
Drury,  et  al,  vs.  Conner,  et  al.  6  Itarr.  fy  Johns.  288. 

BLAND,  Chancellor,  (March  term,  1825,)  Decreed,  that  the 
defendant  pay  to  the  complainant  the  sum  of  S.33S  66,  with 
interest  on  $220  50,  part  thereof,  from  the  6th  of  December 
1824,  until  paid,  with  costs  to  be  taxed  by  the  register.  Fiom 
which  decree  the  defendant  appealed  to  this  Court. 

The  cause  was  argued  at  the  last  June  term,  before  BUCHAN- 
AN, Ch.  J.  and  EARLE  and  ARCHER,  J« 

Taney,  for  the  Appellant,  contended,  1  .  That  the  complainant's 
remedy  for  mesne  profits  was  at  law.  Dormer  vs.  For  fescue,  9 
Jltk  129.  Jesus  College  vs.  Bloom,  Ib.  262.  Warren  <§•  Taylor 
vs.  Fergusson  4*  Robertson,  4  Harr.  fy  Johns.  46.  Loker  vs. 
Rolle,  3  Ves.  4,  7.  Cooper's  Plead,  124.  Where  relief  may  be 
obtained  at  law,  the  party  cannot  proceed  in  equity.  There  is  no 
proof  in  the  record  that  the  complainant  was  an  infant;  and  if  he 
was  an  infant,  he  should  have  rents  only  from  the  time  of  filing 
his  bill.  Pulteney  vs  Warren,  6  Ves.  93,  94.  An  infant,  as  sucfy 
could  not  bring  a  bill  for  mesne  profits.  But  it  will  be  said 
the  bill  was  not  demurred  to.  The  answer  denies  the  right  of 
the  complainant  to  an  account  for  the  rents  and  profits.  Where1 
the  defendant  might  have  demurred  to  the  bill,  he  may  avail 
himself  of  want  of  jurisdiction  at  the  final  hearing.  Barker 
vs.  Dacie,  6  Ves.  686.  Consent  of  parties  cannot  give  juris- 
diction. If  it  appears  by  the  bill  that  it  is  a  subject  of  which 
the  court  has  no  jurisdiction,  they  will  not  assume  it.  It  is  not 
necessary  for  the  defendant  to  deny  that  the  court  has  jurisdic- 
tion. Carter  vs.  United  Insurance  Company,  1  Johns.  Ch, 
Hep.  463. 

2.  The  proper  parties  are  not  before  the  court.      Cooper's 
Plead.  33.     Equity  will  prevent  a  multiplicitv  of  suits.   Dun- 
gey  vs.  Jlngove,  2  Ves.  Jr.  304.     The  children  of  Mrs.  Mills 
should  be  parties  —  there  being  proof  in  the  record  that  part  of 
the  rents  and  profits  had  been  paid  to  her. 

3.  The  complainant  has  no  right  to  recover  more  than  a 
»\oiety  of  that  part  of  the  land  rented.     Saunders  vs   Lord, 
•Annesley,  2  Sch.  #  Lef.  73,  93.     Dungey  vs.  dngove,  2  Ves* 
jr.  304. 


OF  MARYLAND. 


DBURY  v.  CONNER  — 1827. 


4.  The  decree  of  the  chancellor  is  clearly  wrong.  He  has 
decreed  the  whole  rents  and  profits,  deducting  one-eighth,  when 
lie  should  have  deducted  one-fourth.  From  the  evidence,  the 
estimated  value  of  the  rents  and  profits  is  too  high.  The  true 
rule,  as  to  the  Value,  is  the  sum  received  and  paid.  The  means 
from  which  the  witnesses  could  calculate  the  value  must  be 
looked  to.  Interest  too  has  been  charged  at  the  end  of  each 
year  upon  the  amount  stated  as  the  rents  and  profits.  This  is 
wrong.  1  Fonbl.  159,  (note.)  The  value  of  the  improve- 
ments ought  to  be  set  off  against  the  inflamed  amount  of  the 
profits. 

Brewer,  jr.  for  the  Appellee.  1.  The  court  of  chancery 
will  not,  in  some  cases,  give  relief,  where  it  can  be  obtained  at 
law;  yet  it  will  give  relief  for  mesne  profits  where  infants  are 
concerned.  1  Madd.  Ch.  75.  Dormer  vs.  Fortescue,  3*fllk.  130. 
Where  any  person  enters  upon  the  property  of  an  infant,  he  is 
a  guardian  or  bailiff  for  the  infant.  If  he  entered  during  the  in- 
fancy, he  may  be  called  upon  in  equity  to  account  after  the  in- 
fant's arrival  to  full  age.  Where  there  are  not  sufficient  facts 
stated  in  a  bill  to  give  the  court  jurisdiction,  the  defendant  must 
take  advantage  of  it  by  demurrer.  North  vs.  Earl  of  Strafford, 
3  P.  Wins.  149,  150.  Holder  vs.  Chambury,  Ib.  256.  Lud- 
low  vs.  Simond,  2  Caine's  Cas.  18,  19,  39,  40,  51,  52,  56. 
TTnderhill  vs.  Van  Cortlandt,  2  Johns.  Ch.  Rep.  369.  Li- 
vingslon  vs.  Livingston,  4  Johns.  Ch.  Rep.  290.  All  the  au- 
thorities opposed  to  the  rule  are  stated  in  Baker  vs.  Dacie,  6 
Ves.  686.  The  old  rule  is  a  good  one;  it  was  to  preveat  the 
protracting  litigation.  But  this  case  is  properly  cognizable  in 
chancery.  At  law  the  defendant  could  not  be  allowed  for  a 
discount  of  the  one-fourth  claimed  by  him.  He  would  have 
been  compelled  to  go  into  equity  to  obtain  it.  This  shows  the 
propriety  of  this  suit. 

2.  Each  of  the  lessors  of  the   plaintiff  at  law,   as  he  had   a 
right  to  do,  filed  a  separate  bill  in  chancery.     The  defendant 
consented  to  account,  and  he  cannot  now  object  for  the  want  of 
parties.     The  judgment  at  law  was  against  the  present  defen- 
dant only,  and  he  is  alone  to  be  made  defendant  in  this  action. 
West  vs.  Hughes,  1  Harr.  $•  Johns.  578. 
VOL.  i.  29 


226  CASES  IN  THE  COURT  OF  APPEALS 


DRUKT  v    GOWNER — 1827- 


3.  The  defendant  cannot  say  he  did  not  receive  the  whole  of 
the  rents  and  profits.     The  judgment  in  ejectment  makes  him 
answerable,  whether  he  received  them  or  not;  but  he  did  re- 
ceive them,  and  is  therefore  bound  to  pay  over. 

4.  The  rule  adopted  by  the  auditor  in  coming  at  the  value 
of  the  rents  and  profits,  is  the  universal   one.     The  value  is 
only  to  be  proved  by  witnesses  who  know  it,  and  who  give 
their  opinion  as  to  their  ideas  of  its  worth,   one  year  with  a- 
nother. 

Magruder,  on  the  same  side.  1.  The  defendant  should  have 
demurred  to  the  bill,  or  pleaded  to  the  jurisdiction  of  the  court. 
B^  answering  he  has  consented  to  the  jurisdiction,  and  it  it 
now  too  late  for  him  to  take  advantage  of  the  want  of  jurisdic- 
tion. Before  the  case  of  Baker  vs.  Dacie,  6  Ves.  686,  it  wat 
the  practice  to  answer  the  discovery,  and  demur  to  the  re 
lief  asked.  Lord  Eldon  said,  the  defendant  might  demur  tc 
the  whole  bill,  because  relief  was  asked  in  the  san-e  bill,  whicl 
went  for  a  discovery  also.  In  Taylor  8f  JVarren  vs.  Fergus- 
son  Sf  Robertson,  the  point  was  not  raised.  In  this  case  tin 
bill  was  riot  merely  for  discovery,  but  it  was  also  for  relief;  and 
it  is  no  more  a  bill  for  discovery  than  any  other  bill.  Yallop 
vs.  Ho/worthy,  1  Eq.  Cas.  Jib.  280.  Newburg  vs.  Bicker- 
staffe,  1  Fern.  295.  Norlhlcigh  vs.  Luscombe,  *flmbl.  612. 
Mundy  vs.  Mundy,  2  Ves.  jr.  128.  1  Fonbl.  148,  149.  2 
Fonbl.  237,  (and  note. )  Mitf.  1 10.  Post  vs.  Kimberly,  9  Johns. 
Rep.  470,  493,  501,  505.  A  person  who  has  established  hi* 
title  to  land  may  go  into  chancery  for  the  rents  and  profits.  li 
he  proceeds  at  law,  he  cannot  at  the  same  time  go  into  chan- 
cery. The  court  of  chancery  has  concurrent  jurisdiction  with 
the  courts  of  law  in  all  such  cases.  The  action  at  law  for  mesnc 
profits  is  of  modern  invention,  and  does  not  take  away  the 
chancery  jurisdiction.  The  answer  of  the  defendant  shows  that 
this  is  a  case  proper  for  the  court  of  chancery.  If  the  bill  had 
*et  forth  facts  stated  in  the  answer,  that  would  have  given  the 
complainant  a  right  to  go  into  chancery.  West  vs.  Jarrett,  3 
ffarr.  #  Johns.  485. 

2.  The  case  of  Wendell  vs.    Van  Rensselaer,  1  Johns.  Ch. 
Rep.  349,  is  an  answer  to  the  objection  as  to  the  proper  par- 


OF  MARYLAND.  '           227 


UHCHT  v.  COWHER. — 1827. 


ties.  The  complainant  comes  to  assert  his  own  claim,  and  that 
of  no  other  person.  His  claim  is  distinct  from  any  other  per- 
sons. If  there  are  sundry  wards,  each  may  call  on  his  guar- 
dian to  account.  The  representatives  of  Mrs.  Mills  have  no 
interest  in  this  suit.  The  other  persons  are  also  claiming  a- 
gainst  this  defendant  in  separate  actions.  The  answer  does  not 
allege  that  the  defendant  paid  over  a  portion  of  the  rents  to 
Mrs.  Mills.  The  testimony  of  Mrs.  Mills  is  not  to  be  consi- 
dered as  a  supplemental  answer. 

Taney,  in  reply.  The  general  rule,  that  where  a  court  of 
law  can  relieve,  chancery  cannot  interfere,  is  subject  to  excep- 
tions. The  party  must  bring  himself  within  the  exception  to 
enable  him  to  go  into  chancery.  There  is  no  exception  in  fa- 
vour of  rents  and  profits.  In  a  case  of  mere  legal  title  chance- 
ry will  never  interfere  in  favour  of  rents  and  profits.  A  claim 
for  rents  and  profits  is  not  a  matter  of  account.  A  landlord  can- 
not go  into  cha.icery  to  demand  an  account  of  rents  and  profits 
and  demand  pa)'ment.  He  must  allege  something  beyond  his 
legal  title — that  on  account  of  difficulties  he  is  prevented  from 
a  recovery  at  law.  There  are  no  difficulties  alleged  here,  nor 
is  it  the  case  of  landlord  and  tenant;  but  where  there  has  been 
a  recovery  of  possession  of  the  land  at  law,  and  where  mesne. 
profits  might  also  be  recovered.  There  is  a  complete  remedy 
at  law — rents  and  profits  are  similar  to  mesne. profits.  If  an 
infant  claims  equitable  jurisdiction,  he  must  claim  while  he  is 
an  infant,  and  canuot  when  of  full  age  go  into  chancery.  The 
rei  ts  and  profits  are  given  as  an  incident  on  deciding  the  ques 
tion  of  right  to  the  land,  where  the  party  has  been  kept  out  of 
possession  by  fraud,  &c. 

Curia  adv.  vult. 

BUCHANAN,  Ch.  J.  at  this  term,  delivered  the  opinion  of 
the  court.  There  is  a  manifest  error  in  the  account  stated 
by  the  auditor,  on  which  the  decree  in  this  case  is  founded. 
William  IV.  Conner,  in  his  bill  ol  complaint,  seeks  to  reco- 
ver our*  fifth  of  the  rents  and  profits  of  the  land  recovered  in 
the  action  of  ejectment  mentioned  and  referred  to  in  the  bill, 
by  the  five  children  and  heirs  at  law  of  William  Conner,  of 
whom  he  is  one;  one  undivided  fourth  part  of  which  land,  was 


$2$  CASES  IN  THE  COURT  OP  APPEALS 

DnunT  v.  CONNER. — 1827. 

on  the  23d  of  July  1824,  since  the  recovery  in  ejectment,  and 
pending  this  cause  in  chancery,  adjudged  by  a  decree  of  this 
court  to  the  heirs  of  Frederick  Mills. 

The  most,  therefore,  that  William  W.  Conner  could  be  en- 
titled to  on  any  principle,  would  be  a  fifth  of  the  rents  and  pro- 
fits of  the  remaining  three-fourths  of  the  land.  Whereas,  in  the 
audit  >r's  account,  he  is  allowed  at  the  rate  of  one-fifth  of  the 
rents  and  profits  of  seven-eighths  of  the  whole  land,  deducting 
in  favour  of  the  heirs  of  Frederick  Mills  one-eighth  only,  in- 
stead of  a  fourth,  which  principle  is  inadvertently  adopted  in 
the  decree.  And  although  the  difference  produced  in  the  amount 
is  not  very  great,  yet  it  is  the  duty  of  this  court  to  correct  it.  We 
think,  moreover,  there  is  another  error  in  the  decree,  involv- 
ing a  much  larger  amount.  Henry  C.  Drury, in  his  answer, 
alleges,  that  he  had  possession  of  but  a  moiety  of  the  land;  and 
although  some  of  the  witnesses  prove,  that  he  rented  out  the 
other  half,  which  standing  alone,  would  have  been  sufficient  to 
fix  him  with  the  rents  and  profits  of  the  whole,  subject  to  a  de- 
duction of  one-fourth,  by  virtue  of  the  decree  of  this  court  of 
the  23d  o£  July  1824j  yet  the  circumstances  under  which  he 
acted  in  relation  to  the  part  rented  out  by  him,  are  so  explain- 
ed by  the  other  evidence  in  the  cause,  as  to  exonerate  him  from 
any  charge,  beyond  the  rents  and  profits  of  the  moiety  of  the 
3and  occupied  by  himself.  Frederick  Mills,  the  father  of  the 
wife  of  Henry  C.  Drury,  died  in  possession  of  the  land,  claim- 
ing an  equitable  title  to  the  whole  of  it,  and  his  widow,  J2nn 
T.  Mills,  continued  in  the  undisturbed  possession  of  it,  until 
the  fall  of  the  year  1811,  or  1812,  when,  as  appears  from  her 
testimony,  she  gave  up  one  half  of  the  land  to  Henry  C.  Drury 
on  account  of  the  supposed  equitable  title  of  his  wife,  and  of 
another  of  the  heirs  of  Frederick  Mills,  whose  interest  he  had 
purchased,  and  continued  herself  to  receive  the  rent  for  the  o- 
ther  half  for  the  whole  of  the  time  covered  by  the  decree,  as 
guardian  to  one  ot  the  children  of  Frederick  Mills,  and  on  ac- 
count of  the  infant  daughter  of  his  remaining  child. 

Henry  C.  Drury,  therefore,  never  did  receive  the  rents  and 
profits  for  his  own  use,  or  occupy  and  enjoy  the  benefit  of  any 
other  part  of  the  land,  than  the  half  that  was  given  up  to  him 
by  tfnn  T.  Mills;  but  seems  to  have  acted  as  her  agent  only, 


OF  MARYLANB.  229 


Uurnv  v.   CONNER. — 1827. 


in  renting  out  the  other  half,  and  receiving  for  and  paying  over 
to  her  the  rent,  as  it  became  due  and  was  received  by  him, 
which  by  law,  as  her  agent,  it  was  his  duty  to  do;  and  this 
without  compensation,  and  under  the  belief  that  the  equitable 
title  was  in  the  heirs  of  Frederick  Mills,  who  had  at  that  time 
a  bill  depending  in  chancery  against  the  heirs  of  William  Con- 
ner, to  compel  a  conveyance  of  the  land.  And  to  make  him 
answerable  now,  for  the  rents  and  profits  so  received  by  *ftnn 
T.  Mills,  would  be  to  make  him  pay  for  that  which  he  never 
occupied,  or  derived  any  enjoyment,  profit  or  advantage  from; 
but  merely  rented  out,  and  collected  and  paid  over,  the  rent  as 
it  came  into  his  hands,  as  the  friend  and  connexion  o£  another, 
for  whose  use  he  received, and  to  whom  he  was  bound  to  pay 
it  over.  Under  such  circumstances  we  think  he  should  not  be 
made  accountable  to  the  heirs  of  William  Conner  for  the 
rents  and  profits  of  that  proportion  of  the  land,  which  was  re- 
tained by  Jinn  T.  Mills, and  for  which  she  received  the  rent; 
but  of  the  moiety  only,  according  to  the  proof  taken  in  the 
eause,  with  interest,  which,  in  the  language  of  the  witness,  she 
gave  up  to  him,  and  of  which  he  took  possession,  subject  to  a 
deduction  of  one-fourth,  on  account  of  the  decree  of  this  court 
of  the  23d  of  July  1824,  for  a  conveyance  by  the  heirs  of  Wil- 
liam Conner,  of  that  proportion  of  the  land  to  the  heirs  of 
Frederick  Mills;  and  that  the  decree  of  the  chancellor,  direct- 
ing him  to  pay  to  William  W.  Conner  a  sum  that  is  equal  to 
one-fifth  of  seven-eighths  of  the  rents  and  profits  of  the  whole 
land,  is  erroneous  and  ought  to  be  reversed.  If  William  W. 
Conner  wishes  to  obtain  a  proportion  of  the  rents  and  profits 
of  that  moiety  of  the  land,  which  Jinn  T  Mills  did  not  yield 
up  to  Henry  C.  Drury,  he  must  look  to  another  quarter. 

The  objection,  taken  in  argument,  to  the  jurisdiction  of  the 
court  of  chancery  in  this  case,  on  the  ground  that  the  bill,  up- 
on the  face  of  it,  discloses  a  case,  in  which  the  party  has  a  com- 
plete remedy  at  law,  cannot,  we  think,  be  sustained.  It  is  cer- 
tainly true,  as  a  general  position,  that  chancery  will  not  enter- 
tain a  bill,  where  there  is  a  lull  and  complete  remedy  at  law, 
and  no  ground  is  shown  for  going  into  equity.  And  ordinari- 
ly a  bill  for  mesne  profits,  after  a  recovery  in  ejectment,  show- 
ing no  obstacle  at  law,  and  stating  no  ground  of  equitable  re- 


S30  CASES  IN  THE  COURT  OF  APPEALS 

_  -  -  ...._« 

DHCRT  ».  CONKER. — 1827- 

Jief,  would,  on  plea  or  demurrer,  be  dismissed,  there  being  an 
adequate  remedy  at  law;  and  perhaps  at  the  final  hearing  with- 
out either  plea  or  demurrer,  under  the  practice  of  this  state, 
which  has  not  been  very  fully  looked  into. 

But  this  is  not  the  case  of  an  adult  coming  into  chancery  for 
mesne  profits  accruing  after  he  became  of  age,  and  showing  no 
ground  for  equitable  interference.  Whoever  enters  upon  the 
estate  of  an  infant,  is  considered  in  equity  as  entering  as  guar- 
dian for  such  infant.  Bennett  vs.  Whitehead,  2  P.  Wms.  645. 
Morgan  vs.  Morgan,  1  JWe.  489.  Dormer  vs.  Fortescue,  3 
Jltk.  130.  1  Madd.  Ch.  74.  And  after  the  infant  comes  of 
age,  he  may,  by  bill  in  chancery,  recover  the  rents  and  profits. 
Bennett  vs.  Whitehead,  2  P.  Wms.  G45.  And  if  a  person  so 
entering  shall  continue  the  possession  after  the  infant  comes 
of  age,  chancery  will  decree  an  account  against  him  as  guardi- 
an, and  carry  on  such  account  after  the  infancy  is  determined. 
Morgan  vs.  Morgan,  \  Jltk.  489.  2  Fonll.  236.  And  treat- 
ing a  person  who  shall  enter  upon  the  estate  of  an  infant,  and 
•receive  the  rents  and  profits,  as  the  guardian  of  such  infant,  as 
it  seems  chancery  does,  there  is  no  reason  why  the  infant, 
when  he  arrives  at  age,  should  not  have  a  bill  in  chancery 
ngainst  him  for  an  account  of  the  profits  which  have  so  come 
into  his  hands  as  guardian,  that  would  not  apply  to  the  common 
case  of  a  ward,  after  he  comes  of  age,  going  into  chancery 
against  his  guardian,  legally  appointed,  for  an  account.  In  this 
case  the  bill  alleges  that  Henry  C.  Drury  took  possession  of 
the  estate  of  William  W.  Conner,  during  his  minority;  that 
he  continued  a  minor  during  the  whole  period  of  the  possessi- 
en  of  Drury,  and  that  Driiry  received  the  rents  and  profits  as 
Jus  guardian. 

Upon  the  face  of  the  bill,  therefore,  there  is  a  case  made  out 
for  the  jurisdiction  of  a  court  of  chancery;  and  the  objection 
to  the  jurisdiction  on  the  ground  that  the  bill  presents  a  case  in 
which  the  party  has  a  remedy  at  law,  does  not  properly  apply. 

The  bill,  upon  the  face  of  it,  disclosing  matter  sufficient  to 
give  jurisdiction  to  the  court  of  chancery,  it  was  not  a  case 
fit  for  a  demurrer;  and  if  in  point  of  fact,  William  W.  Con- 
ner, was  not  a  minor  at  the  time  Henry  C.  Drury  acquired 


OF  MARYLAND.  231 


KABORO  ».    BANK  OF  COLUMBIA. — 1827. 


possession  of  the  land,  it  ought  to  have  been  pleaded,  and  can- 
not now  be  taken  advantage  of. 

Agreeably  to  the  directions  of  the  court  an  account  was  stat- 
ed, charging  the  appellant  on  the  1st  of  January  1819,  for  the 
rents  and  profits  of  Holloway,  or  Oliver's  Preservation,  as  by 
the  auditor's  account  B,  $630 

On  the  6th  Deer.  1824  for  interest  on  said  rents  and 

profits  as  per  said  account,  337  58 


Deducting  Henry  C.  Drury's  \  part, 


$725  68 
Charging  him  with  William  W.  Conner's  1-5  of 

balance,  $145  14 

With  interest  on  1-5  of  I  of  $630  or  $94  50  from  . 

the  6th  of  December  1824. 

Decreed,  that  the  decree  of  the  court  of  chancery  be  re- 
versed— Decreed  also,  that  the  appellant  pay  to  the  appellee  the 
sum  of  $145  14,  with  interest  on  $94  50,  part  thereof,  from 
the  6th  of  December  1824 — Decreed  also,  that  the  appellant 
pay  to  the  appellee  his  costs  in  the  court  of  chancery,  each 
party  paying  his  own  costs  in  this  court. 

DECREE  REVERSED,  &C. 


RABORQ  vs.  THE  BANK  OP  COLUMBIA. — June,  1827. 

W  drew  a  promissory  note,  which  did  not  bear  date  at  any  particular  place, 
but  was  made  negotiable  at  the  plaintiffs'  bank:  it  was  in  favour  of  C  R  8c 
Son,  or  order,  and  by  the  defendant,  in  their  name,  specially  endorsed 
to  the  plaintiffs,  whose  bank  was  at  G  Not  being  paid  at  maturity,  on 
the  day  after  the  third  day  of  grace,  it  was  presented  to  an  agent  of  W 
at  the  said  bank,  appointed  for  the  purpose  of  attending  to  the  payment 
or  renewal  of  VV's  notes  held  by  the  plaintiff's  for  payment,  which  being 
refused,  notice  of  its  dishonour  was  put  into  the  post  office  at  G.  directed 
to  C  R,  (the  defendant,)  at  B,  where  he  lived.  W,  when  the  note  be- 
oume  due,  lived  at  P  G.  It  appeared  that  it  was  the  custom  at  G,  to  de- 
mand payment  of  notes  on  the  fourth  day  after  they  became  due. — Held, 
that  the  defendant  was  liable  on  his  endorsement  to  the  plaintiffs. 

In  an  action  on  a  promissory  note  drawn  in  favour  of  C  &  It  and  endorsed 
by  R  in  their  names,  to  I',  the  writ  was  against  K  as  surviving  partner  of 
C,  but  the  declaration  was  not.  It  was  proved  that  C  died  before  the 


'232 


RABOHC  v.  BANK  OF  COLUMBIA.  --1827. 


making  of  the  note.  Judgment  was  rendered  against  R  without  stating, 
as  surviving  partner.  On  appeal — Judgment  affirmed. 
"Where  the  appellate  court  had  reversed  a  judgment  and  awarded  a  proce- 
dendo,  and  it  afterwards,  during  the  same  term,  appeared  that  there  was 
a  material  mistake  in  the  record  upon  which  they  acted,  they  struck  out 
the  judgment,  &c.  and  ordered  a  writ  of  diminution  fnole-J 

APPEAL  from  Baltimore  County  Court.  This  was  an  ac- 
tion of  assumpsit,  in  which  the  writ  was  sued  out  against 
Christopher  Raborg,  (the  appellant,)  as  surviving  partner  of 
Christopher  Raborg.  The  declaration  contained  four  counts. 
The  first  count  averred  that  Jacob  Wagner  on  the  23d  of  Ja- 
nuary 1817,  at  George-Town,  in  the  District  of  Columbia^ 
made  a  promissory  note,  bearing  date  the  day  and  year  afore- 
said, and  thereby  promised  to  pay  Christopher  Raborg  and 
Christopher  Raborg,  junior,  by  the  name  of  Messrs.  C.  Ra- 
borg <§*  Son,  or  order,  $1500,  for  value  received,  negotiable  at 
the  Bank  of  Columbia;  that  the  payee  endorsed  the  said  note 
to  the  plaintiffs  (the  appellees.)  The  second  count  was  like  the 
first,  except  that  it  described  the  note  as  payable  to  the  said 
Christopher  Raborg,  by  the  name  of  Christopher  Raborg  and 
Son,  by  which  name  and  style  the  said  Christopher  Raborg 
then  and  there  carried  on  business  and  trade  as  a  merchant,  &c. 
The  third  count  was  like  the  first,  except  that  it  described  the 
note  as  payable  to  one  Christopher  Raborg,  surviving  partner 
of  Christopher  Raborg,  by  the  name  of  Christopher  Raborg 
and  Son.  The  first  count  omitted  to  aver  the  presentation  ot 
the  note  for  payment.  The  second  and  third  counts  averred 
it  to  have  been  presented  for  payment  to  Wagner  on  the  28th 
of  March  1817.  The  fourth  count  was  for  money  had  and 
received  by  the  defendant,  to  the  use  of  the  plaintiffs.  The 
general  issue  was  pleaded. 

At  the  trial  the  plaintiffs  offered  in  evidence  the  following 
promissory  note,  which  was  admitted  to  be  drawn  by  Jacob 
Wagner,  and  endorsed  by  Christopher  Raborg,  the  defendant, 
by  the  name  of  Christopher  Raborg  fy  Son: 

"$1500.  23  Jan'y.  1817. 

Sixty  days  after  date,  I  promise  to  pay  Messrs.  C.  Raborg 
$r  Son,  or  order,  fifteen  hundred  dollars,  for  value  rec'd,  nego- 
tiable at  the  Bank  of  Columbia.  Jacob  Wagner. 

Credit  the  drawer.     C.  R.  $  Son." 


OF  MARYLAND.  233 


HA  BOKO  v.  BASK  OF  COLUMBIA. — 1827. 


(Endorsed.)  "Pay  the  contents  of  the  within  note  to  the 
President,  Directors  and  Company  of  the  Bank  of  Columbia, 
or  order,  value  received.  Christopher  Raborg  Sf  Son. " 

The  plaintiffs  also  offered  evidence,  that  on  the  28th  day  of 
March,  in  the  year  1817,  payment  of  the  said  note  was  de- 
manded from  Daniel  Kurtz,  at  the  banking-house  of  the  plain- 
tiffs in  George-Town,  in  the  District  of  Columbia,  the  teller 
of  the  Bank  of  Columbia  aforesaid,  and  that  the  said  Jacob 
Wagner  resided  at  that  time,  and  for  some  time  before,  in 
Prince-George's  county,  in  the  state  of  Maryland,  and  that 
said  Kurtz  was  agent  for  said  Wagner,  in  attending  to  the 
payment  and  renewal  of  the  notes  of  said  Wagner,  held  by 
said  plaintiffs,  or  deposited  with  them  for  collection,  and  that 
upon  the  said  demand  the  said  note  was  not  paid,  and  on  the 
same  day  a  letter  was  put  into  the  post  office  at  George-Town, 
by  the  agent  of  the  plaintifls,  directed  to  said  Christopher  Ra- 
borg, at  Baltimore,  where  he  resided,  informing  him  that  the 
said  note  was  not  paid,  and  that  he  would  be  looked  to  for  pay- 
ment thereof.  And  also  gave  evidence,  that  it  had  been  the  cus- 
tom of  the  plaintiffs  ever  since  their  incorporation,  and  of  all 
the  other  banks  and  merchants  in  the  District  of  Columbia,  to 
demand  payment  of  notes  on  the  fourth  day  after  they  became 
due,  and  not  on  the  third.  And  the  plaintiffs  offered  .no  evi- 
dence to  show  a  personal  knowledge  by  the  defendant  of  the 
usage  aforesaid  other  than  the  uniformity  and  notoriety  of  the 
usage  for  the  time  aforesaid.  The  defendant  proved  that  Chris- 
topher Raborg,  senior,  the  father  of  the  present  defendant, 
died  in  the  month  of  June,  1815,  and  before  the  making  and 
delivery  of  the  said  promissory  note  on  which  this  action  is 
brought.  The  plaintiffs  then  moved  the  court  to  direct  the 
jury,  that  if  they  believed  the  evidence  so  offered  by  the  plain- 
tiffs, they  were  entitled  to  recover.  Which  direction  and  opi- 
nion the  Court,  [Dorsey,  Ch.  J.  and  Hanson  and  Ward,  A.  J.] 
accordingly  gave.  The  defendant  excepted;  and  the  verdict 
and  judgment  being  against  him,  he  appealed  to  this  court. 

The  cause  was  irgued  at  June  term  1825,  before  BUCHANAN, 
Ch.  J.  and  EARLE,  MARTIN,  and  STEPHEN,  J. 
VOL.   1  -30 


234  CASES  IN  THE  COURT  OP  APPEALS 

HAUOHG  v.    BANK  OF  COLUMBIA.  — 1827. 

Mayer,for  the  Appellant,  contended,  that  the  judgment  ought 
to  be  reversed. 

1.  Because  the  judgment  could,  if  at  all,  have  been  against 
the  defendant,  only  as  a  surviving  partner,  agreeably  to  the 
writ. 

2.  Because  the  declaration  does  not  aver  the  partnership  of 
the  Christopher  Raborgs,  or  the  survivorship  of  the  defen- 
dant. 

3.  Because  upon  the  form  and  terms  of  the  prayer  the  court 
below  were  not  authorised  to  direct  the  jury  to  find  the  verdict 
which  they  gave. 

4.  Because  demand  of  payment  of  the  note  was  not  made  in 
time,  and  of  the  proper  person,  or  at  the  proper  place. 

On  the  first  and  second  points,  he  referred  to  1  Chitty's 
Plead,  294.  Cabe.ll  vs.  Vaughan,  1  Saund.  291,  g.  (note.} 
Jell  vs.  Douglas,  6  Serg.  4*  Lowb.  451.  He  contended  that 
the  defects  in  the  declaration  were  not  cured  by  the  act  of 
1809,  ch.  153,  s.  2. 

On  the  third  point,  he  contended,  that  as  there  was  no  proof 
of  partnership,  the  direction  ot  the  court  was  too  general;  they 
should  have  given  a  special  direction. 

On  the  fourth  point  he  contended,  that  the  demand  on  the 
maker  of  the  note  was  not  made  in  time — -of  the  proper  person, 
and  at  the  proper  place.  The  demand  was  not  in  time,  being 
made  on  the  fourth  day  after  the  day  of  payment.  In  Renner 
vs.  Bank  of  Columbia,  9  Wheat.  582,  the  decision  went  up- 
on the  ground  that  the  party  had  knowledge  of  the  custom  in 
the  District  of  Columbia  to  protest  on  the  fourth  day.  Tho 
custom  is  not  considered  as  a  part  of  the  consideration  of  the 
note,  or  forming  any  part  of  the  contract.  The  days  of  grace 
are  given  under  the  usage  as  an  indulgence  in  extending  the 
time  when  the  note  becomes  due.  It  is  to  rebut  the  evidence 
of  negligence  in  presenting  the  note  for  payment.  A  custom 
like  this  is  in  derogation  of  the  common  law,  and  is  to  be.  con- 
strued strictly.  The  custom  is  to  be  proved,  and  it  must  be 
shown  that  the  party  had  knowledge  of,  and  was  bound  by  it. 
In  Bank  of  Columbia  vs.  Magruder,  6  Harr.  $?  Johns.  172, 
this  court  decided,  that  if  the  party  knew  the  custom,  he  was 
bound  by  it.  Here  the  court  below  went  upon  the  notoriety 


OF  MARYLAND.  235 


UA.BORG  v.  DANK  OF  COLUMBIA. — 1827. 


of  the  custom.  Both  the  maker  and  endorsers  of  the  note  re- 
sided out  of  the  District  ot  Columbia,  and  the  custom  did  not 
bind  them.  The  place  where  the  note  was  drawn  is  not  stat- 
ed in  the  note.  There  was  no  privity  between  the  maker  and 
endorsers,  and  the  plaintiffs,  (the  endorsees.)  The  law  of  this- 
state  is  to  govern  as  to  the  days  of  grace  to  be  allowed.  Ro- 
binson  vs.  Bland,  2  Burr.  1077.  Although  the  note  is  ex- 
pressed on  its  face  to  be  negotiable  at  the  Bank  of  Colum- 
bia, yet  it  is  not  to  be  implied  that  it  is  to  be  paid  there. 
The  contract  is  to  be  performed  in  this  state  where  the  maker 
and  endorsers  resided,  and  where  the  holders  seek  to  obtain 
payment.  Mandeville  vs.  Union  Bank  of  George  Town,  & 
Cranch,  9,  If  the  endorser  is  bound  by  the  custom,  yet  the 
demand  of  payment  was  not  made  of  the  proper  person.  There 
was  no  pro6f  of  a  personal  demand  of  the  maker;  it  was  mere- 
ly made  of  Kurtz,  who  is  said  to  be  his  agent.  Where  a  note 
is  made  payable  at  a  particular  place,  it  constitutes  a  part  of  the 
contract,  on  the  ground  that  the  parties  agreed  it  should  be  paid 
there;  yet  the  law  is  that  the  demand  of  payment  must  be  made 
of  the  drawer  personally.  Where  there  is  a  legally  constitut- 
ed agent,  a  demand  of  him  is  considered  different,  as  in  Philips 
vs.  tflstling,  2  Taunt.  206,  where  the  agent  was  the  acceptor 
of  the  bill. 

G.  H.  Steuart,  for  the  Appellees.  On  the  first  and  second 
points,  he  cited  1  Chitty's  Plead.  37.  Eccleston  vs.  Clipsham, 
1  Saund.  154,  (note  I. )  Slipper  vs.  Stidstone,  1  Esp.  Rep. 
47.  Gow  on  Part.  SOS,  209.  Goelet  vs.  M-Kinstry,  1  Johns. 
Cas.  405.  Wood  vs.  Braddick,  1  Taunt.  104.  Smith  vs. 
Ludlow,  6  Johns.  Rep.  667.  Spaldingvs.  Mure,  6  T.  R.  363. 

On  the  fourth  point.  In  Jackson  vs.  The  Union  Bank  of 
Maryland,  6  Harr.  8f  Johns.  150,  this  court  decided  that  the 
party  dealing  with  a  particular  bank  was  bound  to  notice  the 
custom  prevailing  in  the  place  where  the  bank  is  established. 
So  here  the  maker  and  endorsers  of  the  note  in  question,  trans- 
acting business  with  the  Bank  of  Columbia,  were  bound  to  no- 
tice the  custom  prevailing  at  that  bank.  Here  the  note  was 
made  negotiable  at  the  Bank  of  Columbia,  aiid  it  was  bound 
by  all  the  consequences  which  flow  from  ihe  custom  of  that 


-236  CASES  IN  THE  COURT  OP  APPEALS 

KABOHG  v    BANK.  OF  COLUMBIA. — 1827. 

bank.  Usage  must  be  respected  in  transactions  of  this  nature. 
Hatsey  vs  Brown,  3  Day's  Rep.  349.  The  non-residence  of 
the  drawer  and  endorser  does  not  affect  the  case.  M'Gruder  vs. 
Bankof  Washington,  9  Wheat.  598.  In  The  Bank  of  Co- 
lumbia vs.  Mugruder,  6  Uarr.  #  Johns.  172,  this  court  said, 
that  knowledge  of  the  custom  must  be  known  to  the  .party,  yet 
they  did  not  say  how  that  knowledge  was  made  to  apply.  Here 
the  note  was  made  negotiable  at  the  Bank  of  Columbia,  show- 
ing that  it  was  to  come  under  the  usage  and  custom  adopted  by 
that  bank,  and  existing  in  the  District  of  Columbia,  in  the  col- 
lection  of  the  notes  when  they  became  payable.  The  lex  loci 
is  to  govern.  Here,  by  the  note,  it  is  plain  as  to  where  it  was 
to  be  paid.  The  contract  was  executed  with  reference  to  its 
performance  in  the  District  of  Columbia.  The  demand  was 
made  on  the  agent  indicated  by  the  drawer  himself.  He  could 
not  take  advantage  of  the  demand  not  having  been  legally  made, 
when  he  directed  it  should  be  made  of  his  agent.  Philips  vs, 
<ftst'ling,  2  Taunt.  206. 

F.  S.  Key,  on  the  same  side.  The  validity  of  the  local  cus- 
toms in  the  District  of  Columbia  has  been  established  both  in 
the  supreme  court  of  the  United  States  and  in  this  court.  The 
usage  is  not  contrary  to  the  law  of  the  land.  Where  this  usage 
of  four  days  of  grace  prevails,  it  is  to  be  regarded  and  sanc- 
tioned in  the  same  manner  as  the  usage  of  three  days  of  grace 
prevailing  in  other  places.  The  three  days  of  grace,  it  has 
been  said,  is  a  sort  of  indulgence.  At  common  law,  the  note 
is  due  at  the  end  of  the  time  stipulated;  but  usage  has  given 
three  days  of  grace;  so  that  a  note  for  60  days  is  a  note  for  63 
days.  It  is  so  settled  in  Renner  vs.  Bank  of  Columbia,  9 
Wheat.  585.  It  is  a  contract  to  pay  on  the  63d  day.  If  with- 
in the  usage  of  the  District  of  Columbia,  it  is  then  64  days; 
and  the  endorser  is  not  liable  until  the  maker  makes  default, 
and  that  is  at  the  end  of  the  64th  day.  Here  the  contract  was 
made  with  a  view  to  its  performance  where  the  four  days  of 
grace  prevailed.  The  parties  to  a  contract,  no  matter  where 
they  reside,  may  make  the  performance  of  it  where  they  please. 
Where  then  did  the  parties  look  to  its  performance,  when  they 
made  this  contract?  No  matter  where  the  note  was  endorsed, 


OF  MARYLAND.  23? 


KABORG  v.   BASK  OF  COLUMBIA. — 1827. 


it  was  to  be  performed  where  the  place  of  business  of  the  draw- 
er was.  Before  the  endorser  is  answerable  the  drawer  must  be 
put  in  default,  and  to  put  him  in  default,  it  must  be  the  non- 
fulfilment  of  his  contract  according  to  the  usage  of  the  place 
where  it  was  to  be  performed.  The  presumption  is,  that  the 
endorser  knew  where  payment  was  to  be  demanded.  Every 
person  who  takes  a  note  is  presumed  to  know  where  payment  of 
it  is  to  be  demanded.  Here  the  payment  was  to  be  demanded 
in  the  District  of  Columbia,  and  if  demandable  there,  it  was 
payable  there.  The  contract  of  the  maker  was  to  pay  the  note 
at  the  end  of  64  days;  and  the  contract  of  the  endorser  was, 
that  if  the  maker  did  not  then  pay,  he  would.  This  too  was  ac- 
commodation note  for  the  benefit  of  the  maker.  The  endors- 
ing of  the  note  was  a  letter  of  credit.  Violett  vs.  Patton,  5 
Cranch,  150.  The  note  was  made  negotiable  at  the  Bank  of 
Columbia,  which  shows  the  intention  of  the  parties;  and  the 
note  was  discounted  at  that  bank  for  the  benefit  of  the  maker. 
Every  endorser  is  considered  as  a  drawer;  and  the  defendant  is 
placed  here  as  the  drawer  of  the  note,  and  to  stand  in  his  place. 
Where  a  note  is  to  be  discounted  at  a  bank,  it  is  different  from 
an  ordinary  note,  which  is  not  discounted,  but  to  be  collected. 
Yeaton  vs.  Sank  of  Alexandria,  5  (Branch.  49.  If  the  de- 
mand had  been  made  to  this  note  on  the  third  day,  it  would  be 
liable  to  be  objected  to.  The  drawer  would  say  it  was  against 
the  contract — that  the  note  was  not  due.  This  objection  the 
endorser  would  also  make.  To  find  out  when  a  note  was  due, 
you  must  look  to  the  place  where  it  was  negotiated.  But  it 
has  been  said  by  the  appellant's  counsel,  that  the  usage  was  es- 
tablished only  where  the  parties  knew  of  the  custom,  and  had 
knowledge  of  it.  This  was  the  case  here.  By  drawing  the 
note,  and  endorsing,  the  drawer  and  endorser  are  presumed  to 
know  the  custom.  The  presumption  of  knowledge  may  be 
made  from  circumstances.  In  this  case  the  facts  justified  the 
court  in  giving  the  direction  prayed  by  the  plaintiffs.  It  is 
stated  in  the  evidence  that  the  usage  was  notorious;  being  so, 
the  court  did  right  in  their  direction  to  the  jury.  By  endors- 
ing the  note  it  brought  notice  of  the  usage  tp  the  knowledge  of 
the  endorser.  As  the  note  was  made  negotiable  at  the  Bank 
e>f  Columbia,  it  shows  that  the  maker  and  endorser  were  an- 


CASES  IN  THE  COURT  OF  APPEALS 


RABOHG  v.   BASK  OF  COLUMBIA. — 1827". 


swerable  for  all  the  consequences,  and  they  were  bound  to  know 
of  the  usage,  by  having  made  and  endorsed  the  note.  The 
Sank  of  Columbia  vs.  Okely,  4  Wheat.  236,  243.  Know- 
ledge must  be  inferred  from  circumstances,  and  actual  know- 
ledge is  not  necessary  to  be  proved.  Rentier  vs.  Bank  of  Co- 
lumbia, 9  Wheat.  582.  Cutler  vs.  Powell,  6  T.  R.  32O.  No- 
ble vs.  Kenneway,  2  Doug.  511.  Vallancc,  vs.  Dewar,  1 
Campb.  503,  508,  (and  note.)  Hahey  vs.  Brown,  3  Day's 
Rep.  346.  Smith  vs.  Wright,  1  Caine's  Rep.  43.  The  Bank 
of  Uticavs.  Smith,  18  Johns.  Rep.  230.  Lewis  vs.  Burr,  2 
Caine's  Cases,  Id6.  Turner  vs.  Mead,l  Stra. 416.  2  Chit- 
ty's  Plead.  219.  Jackson  vs.  The  Union  Bank  of  Maryland, 
6  Harr.  8?  Johns.  1 50.  If  the  maker  of  a  note  appoint  a  place 
for  demand,  a  demand  there  is  sufficient  to  charge  the  endorser. 
Woodbridge  vs.  Brigham,  12  Mass.  Rep.  403. 

Mayer,  in  reply.  The  responsibility  of  an  endorser  is  stricli 
juris.  The  three  days  of  grace  is  stipulated  by  way  of  indul- 
gence— a  forbearance  to  demand  or  sue  until  three  days  have 
elapsed  after  the  note  is  due.  To  insist  on  a  countervailing  usage, 
it  must  be  shown  that  the  party  to  be  affected  by  it  had  a  di- 
rect knowledge  of  the  existence  of  such  usage.  The  usage  is 
not  to  be  viewed  as  a  change  of  the  contract.  The  note,  and 
the  contract  in  pursuance  thereof,  was  that  the  note  was  to  be 
paid  in  this  state,  and  not  in  the  District  of  Columbia,  as  no 
place  of  payment  was  designated  in  the  note — the  residence  of 
both  the  maker  and  endorser  being  in  this  state.  Young  vs. 
Bryan*  6  Wheat.  151.  The  note  being  negotiable  at  the  Bank 
of  Columbia,  does  not  necessarily  make  it  payable  at  that 
bank;  or  that  it  brought  home  to  the  endorser  knowledge  of 
the  special  custom  of  that  bank,  that  demand  of  payment  was 
not  to  be  made  until  the  fourth  day  after  the  note  became  due. 
The  note  was  not  payable  at  the  bank,  unless  it  had  been  so 
expressed. 

Curia  adv.  vult. 
At  this  term, 

JUDGMENT   AFFIRMED,  f0.^ 

fa)  See  the  following  case  of  The  Bank  of  Columbia  vs.  Fitzhugh, 
where  the  opinion  of  the  court  is  given  at  length  on  the  same  question  as 
that  raised  on  the  fourth  point  in  this  case. 


OF  MARYLAXB.  239 


BANK  OF  COLUMBIA  v.  FJTZIIUGH. — 1827. 


Tlicre  were  two  other  appeal*  to  this  court  from  jnd^iv-nts  ren.lered  in 
Baltimore  county  court,  in  actions  brought  by  the  Bank  of  Columbia  against 
Rabor<r,  on  other  promissory  notes,  drawn  and  endorsed,  and  payment  de- 
manded of  the  maker  on  the  fourth  day  after  each  note  became  due,  as 
stated  in  the  above  cause,  except  that  it  appeared  by  the  record  in  one  of 
the  cases,  that  the  endorsement  of  one  of  the  notes  sued  upon  had  not  been 
filled  up  to  the  plaintiffs,  but  was  left  blank.  The  court  affirmed  one  of  the 
judgments;  but  that,  wherein  the  endorsement  of  the  note  did  not  appear 
to  be  filled  up,  they,  for  that  reason  reversed  the  judgment,  and  awarded  a 
procedendo.  It  was,  however,  suggested  at  an  adjourned  meeting  of  the 
court  of  the  present  term,  by  the  counsel  for  the  appellees,  that  the  en- 
dorsement to  the  appellees  of  the  promissory  note  alluded  to,  had  been  filled 
up  before  the  trial,  and  that  the  clerk  had  omitted  to  state  that  fact  in  the 
transcript  of  the  record  sent  to  this  court.  A  certificate  to  that  effect  hav- 
ing been  produced,  the  court,  on  motion  of  the  appellees'  counsel,  struck 
out  the  judgment  of  reversal  and  award  of  procedendo,  and  ordered  a  wr.it 
of  diminution.  The  counsel  for  the  appellant,  then  consented  that  the  re- 
cord in  this  court  might  be  amended  by  filling  up  the  blank  endorsement  of 
the  note;  which  being  done,  the  judgment  was  also  affirmed. 


THE  BAXR  OF  COLUMBIA  vs.  FITZHUGH. — June  1827. 

A  drew  a  note  dated  at  G,  and  there  payable  60  days  after  date,  in  favour 
of  B,  or  order,  who  endorsed  it  to  the  plaintiffs,  by  whom  it  was  dis- 
counted. On  the  first  day,  after  the  third  day  of  grace,  payment  was 
demanded  of  this  note  of  A,  who  not  paying  it,  notice  of  its  dishonour  was 
sent  by  post  to  B,  who  did  not  then,  nor  when  he  .endorsed  the  note,  re- 
side at  G.  It  appeared  that  it  had  been  the  universal  practice  of  banks 
and  merchants  at  G,  for  20  years,  to  present  negotiable  notes  due  and 
unpaid  to  the  drawer  for  payment,  on  the  fourth  day  of  grace;  that  such 
usage  was  of  public  notoriety,  and  that  the  demand  and  notice  above 
mentioned  were  in  conformity  thereto — Held,  that  B's  contract  was  to  be 
considered  as  made  in  reference  to  this  usage;  that  both  he  and  the 
drawer  looked  to  the  place  where  the  money  \vas  to  be  paid,  and  the 
contract  performed,  and  must  be  presumed  to  have  known  this  usage, 
and  he  was,  therefore,  liable  as  endorser. 

A  usage  of  universal  prevalence  becomes  a  part  of  the  existing  law,  and  19 
to  be  noticed  ex  qfflcio  by  the  courts  of  justice,- but  a  particular  usage 
has  a  circumscribed  and  limited  application,  and  must  be  supported  by 
proof.  Where  it  is  well  established,  it  is  as  obligatory  on  the  objects  of 
its  operation  as  the  general  law. 

Usage  enters  into  contracts,  becomes  a  part  of  them,  and  must  be  regard- 
ed in  their  interpretation. 

Special  usages  control  and  govern  the  general  law  repugnant  to  them. 

APPEAL  from  Washington  County  Court.    This  was  an  ac- 
tion ofassumpsit  brought  in  the  names  of  the  President)  Direc~ 


240  ©ASES  IN  THE  COURT  OP  APPEALS 

BASK  or  COLUMBIA  v.  FITZHCGH. — 1827. 

tors  and  Company,  of  the  Bank  of  Columbia,  (now  appel- 
lants,) against  the  appellee,  upon  a  promissory  note  drawn  by 
Samuel  Fitzhugh  at  George  Town,\n  the  District  ofColumbia, 
on  the  31st  of  March  1818,  for  $2500,  and  payable,  sixty  days 
after  date,  to  William  Fitzhugh,  junior,  (the  appellee,)  or  or- 
der, and  by  him  endorsed  to  the  plaintiffs.  The  declaration  con- 
tained but  one  count  on  the  said  note, in  which  the  plaintiffs  aver, 
that  at  the  end  of  the  60  days,  to  wit,  on  the  3d  of  June  181S, 
they  presented  the  note  to,  and  demanded  payment  of,  the  said 
Samuel  Fitzhugh,  &c.  The  general  issue  was  pleaded. 

At  the  trial  the  plaintiffs  offered  in  evidence  the  following 
promissory  note: 
"Doll.  2500.  Geo.  Town,Marc\\  31,1818. 

Sixty  days  after  date  I  promise  to  pay  William  Fitzhugh, 
junr.  or  order,  twenty-five  hundred  dollars,  value  received,  ne- 
gotiable at  the  Bank  of  Columbia. 

Saml.  Fitzhugh," 

Endorsed:  "Pay  to  The  President,  Directors  and  Compa- 
ny, of  the  Bank  of  Columbia. 

Wm.  Fitzhugh,  junr." 

The  defendant  admitted  that  the  endorsement  on  the  note 
was  his  proper  handwriting.  The  plaintiffs  proved,  (under  a  com- 
mission,) that  payment  of  the  note  was  demanded  of  the  maker 
on  the  3d  of  June  1818,  who  did  not  pay  it,  and  that  a  notice 
to  the  endorser  was  on  the  same  day,  after  the  demand  and  re- 
fusal aforesaid,  put  into  the  post  office  at  George,  Town,  direct- 
ed to  him  at  Hager's  Town,  Maryland,  where  he  resided; 
and  it  was  admitted  that  the  defendant,  at  the  time  he  endors- 
ed the  said  note,  and  when  it  became  due,  and  was  protested, 
was  not  a  citizen  of  George  Town,  or  the  District  ofCohtmbia, 
but  was  at  the  said  times  respectively,  and  still  is,  a  citizen  of 
this  state,  residing  in  Washington  county.  A  variety  of  other 
testimony  was  taken  under  the  commission  which  issued  to  the 
District  of  Columbia,  which  went  to  establish,  that  there  had 
existed  at  George  Town  from  the  year  1793,  to  the  date  of 
the  note,  a  practice  among  banking  corporations,  merchants,  and 
dealers  in  negotiable  paper,  of  demanding  payment  of  unpaid 
notes  and  bills,  on  the  fourth  day  after  the  time  limited  lor  pay- 


OP  MARYLAND.  241 


OF  COLUMBIA  v.  FITZHUGH  — 1827. 


ment,  according  to  the  terms  of  the  note  or  bill  had  terminated, 
on  which  fourth  clay  it  was  the  practice  to  give  notice  to  the 
endorsers,  of  the  nonpayment  thereof.    That  such  practice  was 
generally  known,  and  alnlost  universally  prevailed  among  men 
of  business  at  George  Town;  that  persons  who  paid  their  notes 
on  the  fourth  day  of  grace,  maintained  their  credit  as  punctual 
men,  though  some  punctual  men  paid  their  notes  on  the  third 
day  of  grace;  that  about  the  20th  of  June  IS  18,  a  different  practice 
began  to  prevail,  the  validity  of  demanding  payment  from  the 
maker  of  a  note,on  the  fourth  day  of  grace  to  bind  the  endorser, 
being  then  questioned;  and  some  of  the  banks  had  payment  of 
notes  demanded, and  notices  to  endorsers  given,  both  on  the  third 
and  fourth  days  of  grace.     That  prior  to  that  time  no  bank  in 
George-Town,  or  in  Washington,  in  the  said  district,  where 
a  similar  practice  had  prevailed,  was  known  to  have  a  different 
practice,  though  there  were  some  exceptions  in  practice  from 
the  banks  in  Baltimore,  transmitting  notes  for  collection,  giv- 
ing orders  to  have  such  notes  protested  on  the  third   day  ofJ 
grace.     The  plaintiffs  then  prayed  the  opinion  of  the  court, 
and  their  direction  to  the  jury,  that  if  they  shall  find  from  the 
evidence,  that  from  the  year  1798,  up  to  the  time  when  the 
note  offered  in  evidence  became  due,  it  was  the  established 
usage  and  practice  of  the  Bank  of  Columbia,  and  that  it  was 
the  usage  and  practice  of  all  the  other  banks  in  Washington 
county,  in  the  District  of  Columbia,  from  the  times  they  re- 
spectively went  into  operation,  until  and  at  the  time  the  saut 
note  became  due;  and  that  it  was  the  universal  practice  of  mer- 
chants in  the  said  county,   to  present  negotiable  notes,  that 
were  due  and  unpaid,  to  the  drawer,  for  payment  on  the  fourth 
day,  i*  e.  the  day  after  the  third  day  of  grace;  and  that  such 
usage  and   practice  was  of   public  notoriety,  and  familiarly 
known  to  all  merchants,  traders,  dealers  and  customers,  in  the) 
said  county;  and,  that  the  negotiable  note  offered  in  evidence 
was  presented  for  payment  to  the  drawer,  and  notice  given  to 
the  defendant  as  endorser  thereof,  according  to  the  said  usage 
and  practice,  that  then  the  plaintiffs  were  entitled  to  recover. 
Which  opinion  and  direction,  the  Court  [Buchanan,  Ch.  J. 
and  Shriver,  and  T.  Buchanan,  A.  J.  ]  refused  to  give.     The 

TOL.   T'.  31 


CASES  IN  THE  COURT  OF  APPEALS 


BANK  OF  COLUMBIA  v.  FITZHUGH.  —  1827. 


plaintiffs  excepted;  and  the  verdict  and  judgment  being  against 
them,  they  appealed  to  this  court. 

The  cause  was  argued  at  the  last  June  term,  before  EARLE^ 
MARTIN,  STEPHEN,  and  DORSEY,  J. 

F.  S.  Key,  for  the  Appellants.  This  case  is  similar  to  that 
vtRaborg  vs.  The  Bank  of  Columbia,  (ante  2  3  I,)  and  the  ar- 
gument^ used  there  are  applicable  to  this  case.  The  decision  of 
the  Supreme  Court  of  the  U.  S.  in  Renner  vs.  Bank  of  Co- 
lumbia, 9  Wheat.  582,  and  Mills  vs.  The  Bank  of  the  Unit- 
ed States,  11  Wheat.  431,  and  of  this  court  in  The  Bank 
of  Columbia  vs.  Magruder,  6  Harr.  fy  Johns.  180,  have  es- 
tablished the  lawfulness  of  the  usage  in  the  District  of  Colum- 
bia, of  demanding  payment  of  a  promissory  note  on  the  fourth 
day  after  it  falls  due,  in  all  cases  coming  within  the  sphere  of 
its  operation.  So  that  the  only  question  remaining  is  —  Does 
the  contract  of  the  parties  in  this  case  come  within  the  opera- 
ration  of  that  usage?  It  will  be  contended  for  the  appellants 
that  it  does.  The  question,  whether  the  usage  is  to  prevail  or 
not,  is  to  be  decided  by  ascertaining  whether  the  parties  looked 
lo  the  performance  of  the  contract  within  the  place  where  the 
usage  prevailed.  For  this  see  Robinson  vs  Bland,  2  Burr: 
1078.  Ludlow  vs  Van  Rensselear,  1  Johns.  Rep.  94.  Ren- 
ner vs  Bank  of  Columbia,  9  Wheat.  588.  Chitty  on  Bills, 
273,  271,  (ed.  of  1817,)  337,  340,  (ed.  of  1821.)  The  endors- 
ing a  note  is  like  the  drawing  of  a  bill  by  the  endorser  on 
the  maker  in  favour  of  endorsee.  Chitty,  336,  (ed.  of  1817.) 
And  where  a  bill  is  drawn  on  a  man  in  another  place,  the  usage 
of  that  place  is  to  prevail,  and  the  drawer  is  bound  by  such 
usage.  Still  more  as  an  accommodation  note  intended  by  the 
parties  to  be  discounted  at  a  particular  place,  which  shows 
that  the  parties  looked  to  a  performance  there.  Still  more 
when  the  note,  as  here  expressed  upon  its  face,  that  it  is  "ne- 
gotiable at  the  Bank  of  Columbia."  Yeaton  vs  Bank  of 
Alexandria,  5  Cranch,  49.  Mandeville  vs  Union  Bank  of 
George-Town,  9  Cranch,  1.  Bank  of  Columbia  vs  Okely, 
4  Wheat.  243.  Again,  it  will  be  contended  that  the  note  must 
have  been  dealt  with  according  to  the  usage,  or  the  maker  could 


€KF  MARYLAND.  £43 


OF  COLUMBIA  v.  FITZHDOH. — 1827. 


not  have  been  in  default,  and  consequently  the  endorser  could 
not  have  been  held  liable.  And,  therefore,  the  endorser's  con- 
tract was — "Deal  with  this  note  so  as  to  put  the  maker  in  de- 
fault, and  I  will  be  liable."  If  this  was  not  his  contract,  he 
made  no  contract  to  be  liable  in  any  way.  As  to*he  construction 
of  such  contracts,  see  Chitty  on  Bills,  11S«  Compliance  with 
the  usage  was  therefore  a  necessary  part  of  the  contract,  and 
the  defendant  is  presumed  to  know  it.  That  this  knowledge 
is  presumed,  and  that  no  proof  of  actual  knowledge  is  necessa- 
ry, is  shown  by  the  following  cases:  Cutter  vs  Powell,  6  T. 
It.  320.  Yeaton  vs  Bank  of  Alexandria,  5  Cranch,  49.  No- 
ble vs  Kennoway,  2  Dong.  511.  The  Bank  of  Utica  vs 
Smith,  18  Johns.  Rep.  230.  Chitty,  (in  note,}  352,  334.  Hal- 
sey  vs  Brown,  3  Day,  346.  Robson  vs  Bennett,  2  Taunt. 
388.  CA«/,(y,271,273,  (ed.  of  1817.)  337,  340,  (ed.  of  1821.) 
Jackson  vs  Union  Bank  of  Maryland,  6  Harr.  8?  Johns.  146. 
Vallancz  vs  Dewar,  \  Campb.  503,  508.  Allegre  vs  Mary- 
land Insurance  Company,  6  Harr.  $•  Johns.  408.  In  none  of 
which  cases  was  a  knowledge  of  the  usage  by  the  party  thought 
necessary  to  be  proved.  In  the  case  of  Alltgre,  vs  Maryland 
Insurance  Company,  this  court  decide  that  evidence  of  a  usaga 
prevailing  in  the  insurance  offices  of  Baltimore,  is  admissible 
to  explain  the  contract  of  a  party,  neither  charged  nor  proved 
to  have  any  knowledge  of  the  usage.  So  that  the  only  differ- 
ence between  this  case  and  those  of  Renner  vs  Bank  of  Co- 
lumbia, and  the  Bank  of  Columbia  vs  Magruder,  is,  that 
there  was  actual  knowledge  admitted,  and  here  the  same 
knowledge  is  necessarily  presumed. 

Taney,  for  the  Appellee.  The  drawer  of  a  note  is  answera- 
ble, whether  there  be  a  demand  or  not.  The  special  custom  is 
intended  to  operate  against  the  endorser.  The  general  rule  is, 
that  a  note  payable  60  days  after  its  date,  is  due  on  the  63d 
llay,  and  expounded  as  if  so  written.  The  usage  assumed  does 
not  profess  to  give  an  interpretation  of  the  note  that  it  is  paya- 
ble on  the  64th  day.  The  usage  proved  is  to  demand  on  the 
fourth  day,  and  to  give  notice  to  the  endorser  on  that  day. 
The  proof  in  the  cause  is  that  punctual  men  paid  their  notes  on 
the  third  day.  The  plaintiffs'  prayer  to  the  court  below  did 


£44  CASES  IN  THE  COURT  OP  APPEALS 

BAWK  OF  COLUMBIA  v,  FITZBUGH. — 1827. 

not  go  to  the  note,  but  only  to  the  usage.  The  note  is  admit- 
ted to  have  become  due  on  the  third  day;  yet  the  usage  is  to 
demand  payment  and  protest  on  the  fourth.  It  was  not  put  to 
the  jury  to  say  when  the  note  became  due.  The  whole  effect 
of  demand  andfcotice  is  to  make  the  endorser  liable.  Admit  that 
this  case  is  similar  to  that  of  Mills  vs  Bank  of  the  United 
States,  11  Wheat.  431,  yet  this  court  is  not  bound  by  the  de- 
cision in  that  case.  Some  decisions  of  the  supreme  court  are 
binding  upon  this  court;,  but  that  is  not  one  of  those  cases. 
The  laws  of  this  state,  passed  before  the  grant  of  jurisdiction 
over  the  District  of  Columbia,  to  congress,  govern  in  Washing- 
ton county  of  that  district,  except  where  altered  by  congress. 
By  that  law  the  endorser  of  a  note  is  not  liable  unless  certain 
acts  are  done;  one  of  which  is,  that  demand  of  payment  from 
the  maker  be  made  on  the  third  day  after  the  note  becomes 
due.  This  is  the  general  law  of  the  commercial  world.  Len- 
nox vs  Roberts,  2  Wheat.  377.  Every  person  is  bound  to 
Ijnow  the  general  law;  and  in  the  absence  of  proof  of  a  differ- 
ent law,  brought  home  to  him,  he  is  not  bound  by  it.  The  en- 
dorser undertakes  conditionally.  Although  the  note  is  made  ne- 
gotiable at  the  Bank  of  Columbia,  yet  it  need  not  have  been 
negotiated  there.  It  might  have  been  negotiated  in  this  state; 
and  if  it  had  been  discounted  here,  could  it  be  subject  to  the 
usage  in  the  District  of  Columbia?  Would  the  endorser  be 
bound  differently  if  the  note  was  discounted  at  the  Bank  of  Co- 
lumbia, than  he  would  be,  if  discounted  at  any  bank  in  this  state? 
The  I-  gal  exposition  of  the  contract  is  matter  of  law  to  be  de- 
cided by  the  court,  and  usage  must  be  proved  as  part  of  the  law. 
When  a  usage  becomes  general  and  universal,  then  it  becomes 
a  part  of  the  law.  It  does  not  depend  upon  a  usage  being  an- 
eient  or  modern.  No  usage  is  to  be  noticed  unless  it  becomes 
a  part  of  the  law;  and  it  is  to  be  judicially  known  when  it  be- 
comes universal  and  general.  By  the  law  of  this  state  the  liabili- 
ty of  the  endorser  is  conditional.  It  is  implied  by  law,  that  there 
must  be  demand  of  payment  from  the  drawer  on  the  last  day  of 
grace,  and  notice  sent  to  the  endorser  by  the  mail  on  the  next 
day.  Lenox  vs  Roberts,  2  Wheat.  377.  Chitty  on  Bills,  315. 
The  custom  in  the  District  of  Columbia,  as  assumed,  is  a  cus- 
tom affecting  the  endorser  and  not  the  drawer.  The  deposits 


OF  MARYLAND.  245 


BANK  OP  COLI-MBIA  v.  FITZHTJGH — 1827. 


ons  of  the  witnesses  state  it  to  be  variant.  Some  of  the  merchants 
paid  their  notes  on  the  third  clay,  and  some  on  the  fourth.  By 
the  general  law  the  endorser  is  liable  on  the  third  day.  Can  a 
custom  different  from  the  general  law  bind  an  endorser  with- 
out his  consent?  It  is  a  custom  differing  from  the  law,  and 
dispenses  with  the  law  for  the  benefit  of  the  drawer,  and  not 
for  the  endorser.  This  note  was  negotiable  at  the  Bank  of 
Columbia,  and  it  became  liable  to  the  short  process  of  that 
bank,  given  under  the  act  of  1793, ch.  30,  s.  14;  ol  this  the  en- 
dorser is  presumed  to  have  knowledge;  but  not  of  any  new 
custom.  That  was  the  only  object  of  the  words  "negotiable 
at  the  Bank  of  Columbia"  inserted  in  the  note.  The  usages 
mentioned  in  the  cases  cited  by  the  appellants'  counsel  were 
not  inconsistent  with  the  rule  of  law.  As  to  notice,  &c.  see 
Chitty  on  Bills,  277,  355,  (ed.  1821.)  The  rule  is,  that  the  de- 
inand  must  be  made  during  the  hours  of  business.  This  is  not 
a  usage  in  opposition  to  law,  but  it  is  consistent  with  the  law. 
The  same  rule  is  as  to  the  fourth  of  July.  The  usage  in  Jack- 
son vs  The  Union  Bank  of  Maryland,  6  Harr.  fy  Johns. 
146,  is  consistent  with  law.  It  is  a  lawful  usage.  The  deci- 
sion in  The  Bank  of  Columbia  vs  Magruder,  6  Harr.  4* 
Johns.  180,  went  upon  the  principle  of  a  waiver.  There  the 
endorser  being  in  the  District  of  Columbia,  consented  that  the 
demand  and  notice  should  be  on  the  fourth  day.  This  would 
bind  him  independent  of  a  custom;  it  being  his  contract  in 
dealing  with  a  bank  accustomed  to  demand  payment  on  the 
fourth  day.  Besides,  he  had  knowledge  of  the  usage;  and  his 
knowledge  and  conformity  to  the  usage  stands  upon  contract  to 
be  bound  by  the  custom.  Knowledge  of  the  custom  must  be 
brought  home  to  the  endorser,  and  it  then  enters  into  the  es- 
sence of  the  contract.  If  demand  of  payment  is  made 
.on  the  third  day,  and  notice  by  the  mail  on  the  fourth 
day  to  the  endorser,  the  holder  of  the  note  might  recover  not- 
withstanding  the  custom.  The  usage  does  not  abolish  the  law. 
By  conforming  to  the  law  it  will  enable  the  party  to  recover 
in  opposition  to  the  custom.  The  usage  cannot  repeal  a  law. 
It  is  not  the  lex  loci  of  the  District  of  Columbia;  but  is  a  mere 
matter  of  contract  between  the  banks,  and  their  customers,  in 
the  district.  The  plaintiffs'  prayer  to  the  court  below  does  not 


246  CASES  IN  THE  COURT  OP  APPEALS 

BANK  OF  COLUMBIA  v.  FITZHUGU. — 1827. 

put  it  to  the  jury,  that  the  plaintiffs  could  not  recover  on  the 
note  on  the  third  day  if  it  was  not  then  paid.  If  the  principle 
contended  for  by  the  appellants'  counsel  is  to  prevail,  every 
petty  village  in  the  state  may  have  a  custom  of  its  own;  and 
the  doctrine  upon  promissory  notes  will  no  longer  be  fixed  and 
settled. 

F.  S.  Key  in  reply.  It  is  not  contended  that  the  usage  sub- 
verted th.2  law;  but  that  it  enters  into  the  contract,  and  forms  a 
part  of  it.  How  did  the  three  days  of  grace  become  a  princi- 
ple of  law?  By  the  usage  entering  into  the  contract.  The  per- 
son is  presumed  to  have  assented  to  the  usage.  All  dealers  in 
promissory  notes  are  considered  as  merchants,  and  are  brought 
within  the  usage,  and  are  presumed  to  have  consented  to  the 
three  days  of  grace.  In  this  case  the  only  question  is,  whether 
the  party  knew  of  the  usage,  or  was  in  a  situation  to  know  it? 
And  it  has  been  shown,  it  is  believed,  that  he  did  know  it,  or 
was  bound  to  know  it.  Suppose  the  note  had  been  negotiated 
at  any  other  bank,  still  it  must  be  demanded  of  the  drawer  who 
resided  in  George  Town,  or  whose  agent  resided  there,  [t  was 
the  contract  of  the  drawer,  and  it  was  to  be  dealt  with  as  such. 

Curia  adv.  vult. 

EARLE,  J.  at  this  term,  delivered  the  opinion  of  the  court. 
This  is  a  suit  on  a  promissory  note,  brought  in  Washington, 
county  court  by  the  appellants  against  the  appellee,  who  en- 
dorsed the  same.  The  note  was  given  on  the  31st  of  March 
1818,  by  Samuel  Fitzhugh,  of  the  District  of  Columbia,  to 
William  Fitzhugh  junr.  of  Washington  county  in  this  state, 
for  $2500,  payable  to  him,  or  his  order,  60  days  after  date,  and 
negotiable  at  the  Bank  of  Columbia;  and  being  endorsed  to 
the  bank,  it  was  discounted  for  the  accommodation  and  use  of 
the  maker.  At  the  trial  of  the  case  the  note  was  offered  in  e- 
vidence  to  the  jury,  the  endorsement  of  Wm.  Fitzhugh  junr. 
on  the  same  being  admitted  to  be  of  the  proper  handwriting  of 
the  defendant.  And  it  was  proved  by  the  plaintiffs,  under  a 
commission,  that  payment  of  the  note  was  demanded  of  Samuel 
Fitzhugh,  the  drawer,  on  the  third  day  of  June  1818,  being 
the  day  after  the  three  days  of  grace,  and  the  same  was  refus- 
ed by  him,  and  that  nQtice  of  nonpayment  was  given  to  Wil- 


OP  MARYLAND.  247 


BANK  OF  COLUMBIA  v.   FITZHUGFI. — 1827. 


Ham,  Fitzhugh  junr.  by  a  letter  deposited  in  the  post  office  at 
George  Town,  directed  to  Wm.  Fitzhugh  junr.  Hager's  Towrij 
Maryland,  dated  and  deposited  in  the  post  office  on  the  said 
third  day  of  June  1818.  The  plaintiffs  further  proved  under 
the  commission,  that  it  had  been  the  constant  and  almost  unde- 
viating  practice  and  usage  of  the  Bank  of  Columbia)  from  its 
first  establishment  in  1793,  until  after  this  note  became  due,  to 
demand  payment  on  the  day  after  the  three  days  of  grace,  and 
to  give  notice  of  nonpayment  to  the  endorsers  on  the  same  day; 
that  a  similar  usage  had  prevailed  for  many  years  in  all  the 
banks  in  Washington  and  George  Town-,  and  that  the  same 
was  of  public  notoriety,  and  universally  and  familiarly  known 
to  all  merchants,  and  others,  of  Washington  sounty,  in  the 
District  of  Columbia,  where  the  said  banks  were  established. 
And  it  being  admitted  that  the  defendant,  at  the  time  he  endors- 
ed the  note,  and  also  at  the  time  the  same  became  due,  was  not 
a  citizen  of  George  Town,  in  the  District  of  Columbia,  but 
that  the  said  defendant  was,  at  the  times  above  mentioned,  a  ci- 
tizen of  this  state,  residing  in  Washington  county,  the  plain- 
tiffs, by  their  counsel,  prayed  the  opinion  and  direction  of  the- 
court  to  the  jury,  that  if  they  should  find,  from  the  evidence  int 
the  cause,  that  from  the  year  1798  up  to  the  time  the  note  offered 
in  evidence  became  due,  it  was  the  established  practice  and  usage 
of  the  Bank  of  Columbia;  and  that  it  was  the  usage  and  prac- 
tice of  all  the  other  banks  in  Washington  county,  in  the  dis- 
trict, from  the  time  they  respectively  went  into  operation,  un- 
til and  at  the  time  the  said  note  became  due;  and  that  it  was 
the  universal  practice  of  merchants  in  the  said  county  to  pre- 
sent negotiable  notes  that  were  due  and  unpaid,  to  the  drawer 
for  payment,  on  the  fourth  day,  i.  e.  on  the  day  after  the  third 
day  of  grace;  and  that  such  usage  and  practice  was  of  public  noto- 
riety, and  familiarly  known  to  all  merchants,  traders,  dealers 
and  customers,  in  the  said  county;  and  that  the  negotiable  note 
offered  in  evidence  was  presented  for  payment  to  the  drawer, 
and  notice  given  to  the  defendant,  as  endorser  thereof,  accord- 
ing to  the  said  usage  and  practice,  that  then  the  plaintiffs  were 
entitled  to  recover.  The  court  refused  this  opinion  and  direc- 
tion, and  their  refusal  gave  rise  to  the  exception,  the  matter  of 
which  we  are  now  to  revise  and  consider. 


248  CASES  IN  THE  COURT  OF  APPEALS 

BASK  OF  COLUMBIA  w.  FITZHUGH. — 1827. 

This  usage  of  the  Bank  of  Columbia  of  demanding  payment 
on  the  fourth  day,  has  been  recognized  in  this  court  on  a  former 
occasion,  in  the  case  of  the  Bank  of  Columbia  vs  Magruder, 
6  Harr.  £?  Johns.  172,  as  a  reasonable  and  legal  usage,  the  evi- 
dence of  which  should  be  received,  to  come  at  the  understand- 
ing of  parties  in  their  contracts,  which  are  made  with  reference 
to  the  usage.  And  it  was  determined,  by  that  case,  to  be  of 
the  essence  of  the  contract,  and  to  constitute  a  part  of  it  although 
not  expressly  incorporated  in  it,  where  it  was  personally  known 
to  the  party.  This  decision  was  given  upon  the  case  submitted, 
which  was  most  streneously  urged  on  the  ground  of  knowledge 
brought  home  to  the  defendant;  and  however  strong  its  expres- 
sions are,  it  was  not  its  object  to  touch  any  other  subject  than 
the  one  considered;  and  it  was  by  no  means  its  view  to  close 
the  door  against  the  question  now  raised,  which  we  understand 
to  be,  whether,  without  actual  knowledge,  the  usage  is  binding 
on  the  appellee  who  endorsed  the  note  to  the  Bank  of  Colum* 
bia? 

A  usage  of  universal  prevalence  becomes  a  part  of  the  exist- 
ing law,  and  is  to  be  noticed  ex  officio  by  the  courts  of  justice? 
but  a  particular  usage  has  a  circumscribed  and  limited  applica- 
tion, and  must  be  supported  by  proof.  Where  it  is  well  esta- 
blished, it  is  as  obligatory  on  the  objects  of  its  operation  as  the 
general  law.  The  usage  under  our  notice  is  of  this  fixed  and 
established  character.  It  is  of  great  notoriety,  and  long  stand- 
ing; is  recommended  by  its  uniform  and  unvaried  operation; 
and  has  the  sanction  of  the  judicial  tribunals  of  the  country. 
For  years  back  it  has  been  made  to  bear  on  merchants  and  others 
dealing  with  the  bank;  and  the  first  inquiry  is,  whether  the  ap* 
pellee's  acts  have  brought  him  within  the  sphere  of  its  opera* 
tion?  And  we  are  strongly  inclined  to  think  they  have.  The 
note,  made  negotiable  at  the  bank,  was  endorsed  by  him  for  the 
accommodation  of  the  maker,  and  he  appears  to  us  as  much 
identified  with  the  negotiation,  and  to  have  become  as  much  a 
dealer  at  the  bank,  as  if  he  had  endorsed  it  for  value  received. 
His  remote  situation  makes  no  difference,  as  the  transaction 
brings  him  in  contact  with  the  institution,  and  he  and  the  draw- 
er have  both  to  look  to  the  district  as  the  place  where  the  money 
is  to  be  paid,  and  the  contract  to  be  performed.  If  for  the  pur- 


OF  MARYLAND* 


BANK  OF  COLUMBIA  v.  FITZHCGH. — 1827. 


poses  of  this  decision  the  appellee  is  to  be  viewed  in  the  light 
of  a  dealer  with  the  bank,  the  next  and  more  important  inqui- 
ry is,  is  he  bound  to  take  notice  of  the  usage,  and  will  the  lav?" 
presume  his  knowledge  of  it?  The  argument  is,  that  he  is 
placed  in  a  situation  to  know,  and  is  therefore  presumed  to 
know.  There  are  usages  analogous  to  this,  which  have  been 
resorted  to  in  the  interpretation  of  contracts,  where  it  will  be 
found  from  the  authorities;  the  party  has  been  deemed  to  be 
bound  without  personal  or  special  knowledge.  Such,  among 
others,  is  the  case  of  Noble  vs  Kennoway,  2  Doug.  511,  where 
the  distinguished  judge,  who  pronounced  the  opinion  of  the 
court  on  the  construction  to  be  given  to  a  policy  of  insurance, 
is  represented  to  say,  "every  underwriter  is  presumed  to  he 
acquainted  with  the  practice  of  the  trade  he  insures,  and  that, 
whether  it  is  recently  established  or  not.  If  he  does  riot  know 
it,  he  ought  to  inform  himself j  it  is  no  matter  if.  the  usage  has 
only  been  for  a  year." 

The  case  of  Vallance  vs  Dewar,  1  Camp.  503,  is  to  the 
same  effect.  The  action  was  upon  a  policy,  and  in  giving  it  an 
interpretation,  Lord  Ellenborough  adjudged,  that  a  usage  which 
was  notorious  must  be  presumed  to  be  equally  within  the  know- 
ledge of  both  parties;  and  if  a  usage  be  general  though  not  uni- 
form, the  underwriters  are  bound  to  take  notice  of  it. 

There  was  a  case  decided  in  the  supreme  court  of  New  York, 
in  the  year  1820,  which  bears  a  yet  closer  analogy  to  the  case 
we  are  considering,  inasmuch  as  it  relates  to  the  demand  of  pay- 
ment of  promissory  notes.  It  is  the  case  of  the  Bank  of  Uti- 
fia  vs  Smith,  and  is  reported  in  18  Johns.  Rep.  230.  The 
note  was  made  payable  at  the  Mechanics'  Bank  in  the  city  of 
New-York,  and  payment  was  demanded  within  a  quarter  of  an 
hour  after  3  o'clock,  P.  M.  which  is  the  time  for  closing  the 
bank  as  to  ordinary  business.  This  supposed  irregularity  was 
seized  on,  among  others,  to  defeat  the  claim,  and  the  defendant 
bottomed  himself  on  the  undeniable  general  position,  that  pre- 
sentments for  payment  must  be  made  at  a  bank,  where  it  is  the 
appointed  place  of  payment,  during  the  regular  hours  of  busi- 
ness. To  this  was  opposed  the  usage  of  the  Mechanics'  Hank, 
whose  course  of  doing  business  was  to  allow  15  minutes  after 
banking  hours  for  the  presentment  and  payment  of  notes.  It 
VOL.  1  32 


£50        CASES  IN  THE  COURT  OF 


BANK  OF  COLUMBIA  v.   FITZHCBH.  —  1827. 


tvas  contended  by  counsel,  that  the  usage  was  not  sufficiently 
shown,  that  it  ought  to  be  proved  and  brought  home  to  the 
knowledge  of  the  defendant;  but  it  was  notwithstanding  decid- 
ed by  the  court,  that  the  bill  was  properly  presented  at  the 
bank  for  payment,  and  although  it  was  near  a  quarter  of  an  hour 
after  the  usual  time  for  closing  the  bank  as  to  other  business, 
it  was  yet  within  bank  hours,  the  15  minutes  being  the  accus- 
tomed time  for  such  presentments,  and  of  the  course  of  busi- 
ness at  the  bank,  the  defendant  being  the  endorser,  ought  to 
have  informed  himself.  His  admitted  residence  was  at  Peter- 
borough, Madison  county,  in  the  state  of  New-  York. 

But  it  was  earnestly  pressed  upon  us,  on  the  argument,   that 
the  usage  of  the  Sank  of  Columbia  is  entirely  unlike  the 
usages  which  were  decided  on  in  the  cases  above  mentioned, 
because  it  is  directly  repugnant  to  the  general  law  of  the  district. 
By  that  law,  which  is  the  law  of  this  state,  demand  is  made  on 
the  third  day  of  grace,  and  not  on  the  day  after  the  third  day. 
We  have  to  confess  we  cannot  perceive  that  this  argument  has 
much  force  in  it.     We  have  already  determined,  that  the  con- 
tract with  the  bank,  is  not  made  with  a  reference  to  the  exist- 
ing law,  where  the  party  has  a  personal  acquaintance  With  the 
custom;  and  we  think  it  will  be  no  great  stretch  of  the  adjudi- 
cation to  say,  that  the  contract  is  not  made  in  reference  to  the 
general  rule,  where  the  particular  rule  is  presumed  to  be  in  the 
knowledge  of  the  party  ;  if  in  the  first  case,  so  in  the  last,  the 
usage  enters  into  the  contract,  and  becomes  a  part  of  it,  and 
must  be  regarded  in  the  interpretation  of  it.     Direct  authorities, 
however,  are  to  be  found,  where  the  particular  custom  has  been 
determined  to  prevail  over  the  existing  law,  although  in  terms 
opposed  and  repugnant  to  it.     The  case  of  Cutler  vs  Powell,  6 
Term.  Rep.  320,  is  of  this  description.     The  suit  was  upon  a 
promissory  note  given  to  the  mate  of  a  ship   for  a  certain  sum 
of  money,  provided  he  proceeded  on  his  voyage,  and  continued 
to  do  duty  to  the  port  of  destination.     He  died  on  the  voyage, 
and  agreeable  to  the  principles  of  the  common  law,  it  was  clear 
that  nothing  was  due  on  the  note,  as  he  did  not  continue  to  do 
duty  to  the  port  of  destination.      An  inquiry,  nevertheless,  into 
the  usage  in  such  cases,  was  directed  to  be  made  by  the  court, 
and  all  the  judges  expressed  a  willingness  to  sanction  an  allow- 


OF  MARYLAND.  251 


BAXK  OF  COH?MBIA  v.  FITZHCGH. — 1827. 


ance  for  the  time  the  service  was  performed,  if  the  usage  would 
warrant  it. 

A  case  still  more  to  the  purpose  on  this  point  was  decided 
in  the  year  1809,  in  the  supreme  court  of  errors  in  the  state  of 
Connecticut,  Halsey  vs  Brown,  3  Day's  Reports,  346,  where 
assumpsit  was  brought  against  the  owners  of  a  brig  for  certain 
gold  and  silver  coins  shipped  on  board,  to  be  transported  and 
delivered  to  a  mercantile  house  in  New-London^  for  which  a 
bill  of  lading  was  given  by  the  master  in  the  usual  form.  On 
the  trial  of  the  general  issue,  the  ship  owners,  to  repel  their 
liability,  gave  evidence  of  a  usage  or  custom  that  the  freight  of 
money  received  by  the  master  of  a  v%*$el  was  his  perquisite; 
that  he  was  to  be  compensated  for  t'ev  f^nsportation  of  it,  and 
not  the  owners  of  the  vessel,  and  that'  the  contract  was  con- 
sidered as  being  personal,  and  of  individual  obligation,  but  not 
as  the  contract  of  the  owners.  This  evidence  was  objected  to, 
but  suffered  by  the  court  to  go  to  the  jury,  and  the  defendants 
obtained  a  verdict;  on  a  motion  for  a  new  trial  it  was  forcibly 
argued,  that  the  law  rendering  the  owners  liable  for  goods  re- 
ceived by  the  master  to  be  tra/isported,  was  the  settled  law  of 
the  state;  that  the  contract  of  the  master  was  the  contract  of  the 
owners;  his  nondelivery  was  their  nondelivery;  and  that  the 
maxim  respondeant  sitperiores  well  applied. 

The  court  stated  the  true  question  to  be,  whether  evidence 
of  a  particular  custom  or  usage  could  be  given  in  evidence  to 
control  the  general  law;  they  admitted,  that  by  the  general  law 
owners  of  vessels  were  answerable  for  the  contracts  of  their 
masters;  but  they  said  it  may  be  controlled  by  a  special  local 
usage,  so  far  as  that  usage  extended,  which  would  operate  on 
contracts  made  in  view  of  or  with  reference  to  it;  and  they  re- 
fused a  new  trial.  It  is  believed  many  other  cases  might  be 
produced  where  special  usages  have  been  decided  to  control 
and  govern  the  general  law  repugnant  to  them;  but  the  court 
are  fully  satisfied  on  the  point,  and  deem  it  unnecessary  to  mul- 
tiply references  to  authorities. 

It  is  their  opinion,  that  the  defendant  is  placed  in  a  situa- 
tion to  be  acquainted  with  the  above  usage  of  the  Sank  of 
Columbia,  and  must  be  presumed  to  know  it;  and  that  his  con- 
tract is  to  be  considered  to  have  been  made  in  reference  to  the 


252  CASES  IN  THE  COURT  OF  APPEALS 

SANDERSON  v.    MARKS. — 1827. 

usage,  and  not  to  the  general  law,  which  confines  the  demand  of 
payment  to  the  third  day. 

JUDGMENT  REVERSED,  AND  PROCEDENDO  AWARDED. 


SANDERSON'S  Ex'rs.  vs.  MARKS. — June,  1827. 

A  surety  in  a  replevin  bond  is  not  a  competent  witness  for  the  plaintiff  ia 
replevin. 

The  bill  of  sale  of  a  sheriff  for  chattels  levied  on  and  sold  by  him,  is  impro. 
per  testimony  in  itself,  however  it  may  be  considered,  accompanied  by 
proof  of  the  sheriff's  authority  to  sell  the  property  it  professed  to  convey. 

All  the  testimony  offered  b-  ^e  plaintiff,  who  sued  as  executor,  being  re- 
jected by  the  court  as  ilu  Detent,  and  the  defendant  having  given  in 
evidence  declarations  of  the°testator,  tending  to  prove  the  plaintiff's 
claim,  it  is  a  proper  case  for  the  jury  to  consider  ant*  decide,  and  the 
Court  have  no  right  to  instruct  the  jury  that  the  plaintiff  was  not  entitled 
to  recover. 

The  declaration  in  replevin  should  not  include  any  property  not  taken  un- 
der the  writ  of  replevin. 

IF  a  father,  as  natural  guardiun  of  his  child,  was  in  possession  of  a  slave  at 
the  time  of  a  gift  of  the  slave  by  the  owner  to  the  child,  it  was  such  a 
possession  as  was  required  by  the  act  of  1763,  ch.  13,  *.  3,  to  make  it  a 
valid  gift,  and  passed  the  property  without  any  further  delivery  by  the 
donor. 

APPEAL  from  Saint-Mary's  County  Court.  This  was  an, 
action  of  replevin  for  sundry  goods  and  chattels,  and  a  negro 
boy  named  Jack.  The  replevin  bond  was  executed  on  the  23d 
of  October  1821,  by  Gerard  N.  Causin,  and  others,  to  the  de- 
fendant, (now  appellee,)  for  prosecuting  the  writ  of  replevin, 
in  the  name  of  the  plaintiffs'  testator.  The  defendant  pleaded, 
I.  Property  in  himself,  and  2.  Property  in  one  Sophia  Marks. 
Issues  were  joined  on  the  general  replications  to  those  pleas. 
The  death  of  Sanderson  was  suggested,  and  the  plaintiffs  ap- 
peared as  his  executors,  exhibiting  letters  testamentary  to  them 
granted,  &c. 

1.  At  the  trial  the  plaintiffs  offered  to  read  in  evidence  a  bill 
of  sale  from  John  Stevenson,  sheriff  of  Baltimore  county,  to 
Michael  Sanderson,  (the  plaintiffs'  testator,)  executed  on  the 
12th  of  October  1819,  for  sundry  goods  and  chattels,  and  a  ne- 
gro boy  named  Jack,  stated  to  have  been  seized  by  Stevenson 
as  the  property  of  William  Marks,  under  an  execution  issued 


OF  MARYLAND. 


SAHDEBSOIT  v.   MARKS. — 1827. 


at  the  suit  of  William  Riley  against  the  lands,  &c.  of  Marks, 
and  by  Stevenson  sold  at  public  auction  to  Sanderson  for  $512. 
The  bill  of  sale  appeared  to  have  been  acknowledged  by  Steven- 
son before  a  justice  of  the  peace  for  Baltimore  county,  and 
recorded  the  same  day  among  the  records  of  that  county.  To 
the  admissibility  of  which  the  defendant  objected;  and  the 
Court,  \Key,  and  Plater,  A.  J.]  were  of  opinion  that  it  was 
inadmissible,  and  refused  to  permit  it  to  be  read  in  evidence  to 
the  juiy.  To  which  opinion  of  the  court  the  plaintiffs  exempted. 

2.  The  plaintiffs  then  read  in  evidence  the  following  deposi- 
tion, (admitted  to  be  read  so  far  as  the  same  was  competent  tes- 
timony,) viz.  "G.  N.  Causin,  attorney  for  the  plaintiffs,  makes 
oath,  that  he  believes  the  plaintiffs  cannot  proceed  to  the  trial  of 
the  said  cause  with  justice  to  themselves,  at  this  term;  that  John 
Stevenson  of  Baltimore  county,  is  a  competent  witness  in  said 
cause,  and  he  has  reasonable  expectation  that  his  attendance  can 
be  procured  by  the  next  term;  that  he  believes  the  said  wit- 
ness will  prove  the  plaintiffs'  testator  to  have  maintained 
through  life  a  fair  and  upright  character;  that  at  times  he,  (the 
plaintiffs'  testator,)  was  in  the  habit  of  vaunting  of  his  benevo- 
lent actions;  and  that  the  boy  Jack,  mentioned  in  the  declara- 
tion, is  the  same  boy  mentioned  in  the  bill  of  sale  filed  in  the 
cause  from  John  Stevenson,  sheriff  of  Baltimore  county,  to 
the  plaintiffs'  testator."  The  plaintiffs  further  gave  evidence 
by  Gerard  N.  Causin,  that  he  heard  the  defendant,  after  the 
said  negro,  in  the  declaration  mentioned,  was  taken  by  virtue 
of  the  replevin  issued  in  this  cause,  say  that  it  was  strange  that 
the  plaintiffs'  testator  should  replevy  the  said  negro;  for  al- 
though he  had  bought  the  said  negro,  yet  afterwards  he  had 
given  him  to  his,  the  defendant's  daughter  Sophia.  The  de- 
fendant then  gave  in  evidence  the  following  deposition,  taken 
by  consent  of  the  parties  in  this  cause,  and  admitted  to  be  read 
in  evidence,  so  far  as  the  same  was  competent,  viz.  "•flquila 
Carroll,  of  Baltimore  county,  deposeth  and  saith,  that  he  well 
knew  Michael  Sanderson,  in  his  lifetime,  and  has  heard  him. 
say  that  he  had  set  Marks  on  his  legs,  that  they  had  taken  all 
of  his  property  even  to  a  bed,  and  that  they  had  taken  it  for 
house  rent,  or  debts,  but  for  which  he  cannot  now  recollect; 


254  GASES  IN  THE  COURT  OF  APPEALS 

SANDERSON  v.   MARKS. — 1827. 

and  that  he  had  given  all  the  property,  and  a  negro  boy  which 
formerly  belonged  to  Marks,  the  defendant,  and  which  he  had 
bought  at  a  sale  of  Marks'  property  by  the  sheriff  of  Balti- 
more, to  Marks'  daughter  Sophy,  and  that  he  gave  them  to  his 
daughter  to  prevent  his  creditors  from  again  taking  them;  and 
that  this  statement  he  had  frequently  heard  him  make."  To 
interrogatories  put  to  the  witness  by  the  defendant  he  answer- 
ed, 1.  That  the  above  conversation  took  place  shortly  after  the 
occurrence  took  place.  2.  Sanderson  said  that  the  boy  and 
property  of  Marks,  seized  and  sold  by  the  sheriff,  was  bought 
arid  paid  for  by  him.  3  Sanderson  said  be  had  bought  the 
property  for  the  sake  of  Marks'  family,  but  said  nothing  about 
the  delivery.  4.  Sanderson  did  not  say  he  was  in  debt  to 
Marks.  5.  Sanderson  had  no  family  or  any  relations,  to  the 
knowledge  of  the  witness — He  believed  he  had  relations  in  Eu- 
rope. 6.  He  has  known  Marks  for  15  or  20  years.  7.  He  can- 
not say  that  at  the  time  of  the  conversation  before  mentioned 
with  Sanderson  the  negro  boy  and  property  were  in  possession 
of  Marks,  and  used  by  him  then  and  afterwards.  8.  He  does 
not  know  how  long  Marks  remained  in  Baltimore  after  the 
sale  of  the  boy  and  property.  He  does  not  think  it  was  many 
months.  Marks'  daughter  was  between  the  age  of  15  and  20 
years,  and  then  was  living  with  her  father.  9.  He  does  not 
know  that  a  great  intimacy  existed  between  Sanderson  and 
Marks.  The  defendant  then  offered  in  evidence  the  replevin 
bond  filed  in  this  case;  and  it  was  admitted  that  Gerard  N. 
Cousin,  in  the  said  bond  mentioned,  and  the  said  Gerard  N. 
Causin,  who  gave  testimony  as  mentioned  herein,  was  one 
and  the  same  person.  The  defendant  then  prayed  the  court  to 
instruct  the  jury,  that  the  testimony  of  Causin  was  illegal 
and  not  to  be  regarded  by  them;  of  which  opinion  the  court 
were,  and  so  instructed  the  jury.  To  which  the  plaintiffs  ex- 
cepted. 

3.  The  plaintiffs  then  prayed  the  court  to  instruct  the  jury, 
that  if  from  the  testimony  they  should  be  of  opinion  that  the 
plaintiffs'  testator  purchased  the  said  boy  Jack  at  the  sale  of 
the  defendant's  property  by  John  Stevenson,  sheriff  of  Balti- 
yiore  county,  that  then,  to  make  a  gift  of  said  boy  from  San- 


OF  MARYLAND.  255* 


SANDERSON  v.   MARKS.  — 1827. 


derson  to  Sophia  Marks  good  and  valid  in  law,  the  same  must 
be  accompanied  by  a  delivery  of  possession,  or  established  by 
a  bill  of  sale  from  Sanderson  to  Sophia  Marks,  acknowledg- 
ed and  recorded  agreeably  to  law.  But  the  court  refused  to 
grant  the  said  prayer;  but  instructed  the  jury,  that  if  they 
should  be  of  opinion  that  the  said  negro  boy  was  in  possession 
of  the  defendant,  as  natural  guardian  to  his  daughter,  then  it 
was  such  a  possession  as  is  required  by  the  act  of  assembly. 
To  which  refusal  and  opinion  of  the  court  the  plaintiffs  except- 
ed. 

4.  The  defendant  then  prayed  the  court  to  instruct  the  jury, 
that  fronr  the  preceding  evidence  the  plaintiffs  were  not  enti- 
tled to  recover  the  said  boy  in  the  declaration  mentioned.  Of 
which  opinion  the  court  were,  and  so  instructed  the  jury.  The 
plaintiff  excepted,  and  the  whole  of  the  preceding  formed  one 
bill  of  exceptions.  Verdict  as  to  the  first  issue,  that  the  pro- 
perty in  the  said  goods,  &c.  at,  &c.  was  not  in  the  plaintiffs;  and 
the  same  verdict  as  to  the  second  issue.  Judgment  was  ren- 
dered thereon  for  the  defendant;  and  the  plaintiffs  appealed  to 
this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
MARTIN,  STEPHEN,  ARCHER,  and  DORSET,  J. 

Magruder,  for  the  Appellants,  contended,  1.  That  the  bill 
of  sale  from  the  sheriff  of  Baltimore  county  ought  to  have 
been  read  in  evidence.  2.  That  the  court  erred  in  not  instruct- 
ing the  jury  that  if  they  should  be  of  opinion  from  the  evi- 
dence, that  the  plaintiffs'  testator  purchased  the  boy  Jack,  for 
which  this  action  was  brought,  then  to  make  a  gift  of  said  boy 
from  the  testator  to  Sophia  Marks  good,  there  must  be  a  deli- 
very of  the  property,  or  a  bill  of  sale  recorded,  according  to 
law.  3.  That  the  court  erred  in  instructing  the  jury  that  the 
evidence  did  not  entitle  the  plaintiffs  to  a  verdict.  He  referred 
to  the  act  of  1763,  ch.  13,  s.  3. 

C.  Dorsey,  for  the  Appellee. 

EARLE,  J.  delivered  the  opinion  of  the  Court.  The  dispute 
between  the  parties  in  this  case  is  about  the  right  of  property 


25G  GASES  IN  THE  COURT  O?  APPEALS 


SANDERSON  v.   MARKS. — 1827 


in  a  negro  boy  named  Jack.  The  replevin  issued  for  sundry 
other  chattels,  but  they  were  not  replevied  by  the  sheriff,  nor 
noticed  by  him  in  his  return  of  the  writ.  They  nevertheless 
very  inaccurately  appear  in  the  declaration;  and  their  caption 
aad  detention  being  complained  of,  they  are  embraced  in  the 
pleas  filed  by  the  defendant,  and  in  the  issues  tried  in  the  cause; 
These  pleas  and  issues  are,  that  the  property  in  these  goods  and 
chattels,  and  negro  boy,  is  in  the  defendant  and  not  in  the  plain- 
tiffs; and  that  the  property  in  the  same  goods  and  chattels,  and 
negro  boy,  is  in  Sophia  Marks,  the  daughter  of  the  defendant, 
-and  not  in  the  plaintiffs.  On  the  trial  of  these  issues,  the  court 
below  signed  a  bill  of  exceptions,  which  comprises  four  several 
opinions  delivered  by  them.  Two  on  the  inadmissibility  of 
evidence,  and  two  on  the  distinct  prayers  of  the  plaintiffs  and 
defendant.  In  the  two  first,  we  entirely  concur  with  the  court. 

G.  N.  Cousin,  having  been  a  security  in  the  replevin  bond, 
was  certainly  an  incompetent  witness  to  testify  for  the  plain- 
tiffs; and  the  bill  of  sale  signed  by  the  sheriff,  Stevenson,  was* 
unquestionably  improper  testimony  in  itself,  however  it  might 
have  been  considered,  if  it  had  been  accompanied  by  proof  of 
the  sheriff's  authority  to  sell  the  property  it  professed  to  con- 
vey. 

The  prayer  on  the  part  of  the  plaintiffs,  tlje  court  refused  to 
grant;  but  they  expressed  an  opinion  thereon,  in  which  we  co- 
incide. They,  in  substance,  instructed  the  jury,  that  if  they 
should  be  of  opinion  the  defendant,  as  natural  guardian  of  his 
daughter,  was  in  possession  of  the  negro  boy  at  the  time  of  the 
gift,  then  it  was  such  a  possession  as  was  required  by  the  act  of 
assembly  to  make  it  a  good  or  valid  gift,  and  passed  the  pro- 
perty to  her  without  any  further  delivery  by  the  donor. 

The  prayer  on  the  part  of  the  defendant,  was  answered  by 
an  instruction  to  the  jury,  "that  from  the  preceding  testimony 
the  plaintiffs  were  not  entitled  to  recover  the  negro  boy  in  the 
declaration  mentioned."  All  the  evidence  on  the  part  of  the, 
plaintiffs  had  been  rejected  by  the  court,  and  the  words  pre- 
ceding evidence  can  apply  only  to  the  testimony  introduced 
into  the  cause  by  the  defendant  himself.  This  is  to  be  found 
in  the  deposition  of  Jlquilla  Carroll,  who  deposed  that  he  had 
heard  Sanderson  say,  he  had  set  Marks  on  his  legs;  that  tbej* 


OF  MARYLAND.  257 


SANDEBSOX  v.  MARKS. — 1827. 


had  taken  all  his  property,  even  to  a  bed,  and  that  they  had 
taken  it  for  hoase  rent  or  debt,  but  for  which,  the  witness  could 
not  at  that  time  recollect;  and  that  he  had  given  all  the  proper- 
ty, and  a  negro  boy,  which  formerly  belonged  to  Marks,  the 
defendant,  and  which  he  bought  at  a  sale  of  the  said  Marks's 
property  by  the  sheriff  of  Baltimore,  to  the  said  Marks's 
daughter  Sophy,  and  that  he  gave  them  to  the  daughter  to  pre- 
vent his  creditors  from  again  taking  them;  and  that  this  state- 
ment he  had  frequently  heard  him  make.  To  further  inter- 
rogatories on  the  part  of  the  defendant,  Jlquila  Carroll  an- 
swered, that  the  conversation  with  Sanderson  alluded  to,  took 
place  soon  after  the  occurrence;  that  Sanderson  said  the  boy 
and  property  of  Marks,  seized  and  sold  by  the  sheriff,  were 
bought  and  paid  for  by  him;  that  he  bought  the  property  for 
the  sake  ot  Marks' }s  family,  but  said  nothing  about  the  delive- 
ry, and  he  did  not  say  he  was  in  debt  to  Marks.  Jlquila  Car- 
roll also  answered  to  the  defendant's  interrogatories,  that  he 
had  known  Marks  for  fifteen  or  twenty  years,  but  he  could  not 
say  that 'at  the  time  of  the  conversation  alluded  to,  the  boy  and 
property  were  in  the  possession  of  Marks,  or  used  by  him 
then  or  afterwards;  that  Marks  did  not  remain  in  Baltimore 
many  months  after  the  sale;  that  he  did  not  know  the  year  or 
month  of  the  sale,  and  that  Marks' 's  daughter  was  then  about 
fifteen  or  twenty  years  of  age,  and  was'  living  with  her  father; 
and  that  he  had  no  knowledge  of  a  great  intimacy  existing  be- 
tween Sanderson  and  Marks. 

This  testimony  being  before  the  jury,  vfe  cannot  think  the 
court  were  right  in  giving  the  instruction  they  did.  Upon  the 
facts  of  the  purchase  from  the  sheriff,  arid  the  gift  to  the  daugh- 
ter, depends  the  question,  whether  the  plaintiffs  have  a  right  to 
recover  the  negro  boy  in  dispute;  and  the  proof  offered  of 
them  is  not  of  a  character,  it  would  appear,  to  be  decided  on 
by  the  court.  The  declarations  of  Sanderson,  in  reference  to 
these  points,  become  evidence  in  the  cause,  by  the  defendant's 
introducing  and  using  them  against  his  executors,  and  they 
ought  to  have  been  suffered  to  be  considered,  estimated  and  de- 
cided on  by  the  jury;  especially  as  the  court  had  before  sut> 
mitted  to  their  reflections,  the  question  respecting  the  possessi- 
on of  the  boy  at  the  time  of  the  gift. 

JUDGMENT  REVERSED,  AND  FROCEDENDO  AWARDED- 

VOL.  r.  33 


258  CASES  IN  THE  COURT  OF  APPEALS 

MURPHEY  v.  BARROW. — 1827. 

MURPHEY  vs.  BARRON. — June,  1827. 

The  action  for  money  had  and  received,  is  an  equitable  action,  and  equally 
as  remedial  in  its  effects  as  a  bill  in  equity. 

If  one  man  takes  another's  money  to  do  a  thing,  and  he  refuses  to  do  it,  it 
is  a  fraud;  and  it  is  at  the  election  of  the  party  injured,  either  to  affirm 
the  agreement,  by  bringing  an  action  for  the  nonpayment  of  it;  or  to  dis- 
affirm it  ab  initio,  by  reason  of  the  fraud,  and  bring  an  action  for  money 
had  and  received  to  his  use. 

But  where  a  vendor  was  exonerated  from,  the  delivery  of  a  slave,  then  out 
of  his  possession,  whom  he  had  sold,  and  been  paid  for,  and  afterwards 
persuaded  or  enticed  to  abscond,  so  that  the  purchaser  never  got  posses- 
sion of  him,  no  action  can  be  maintained  upon  the  contract  of  sale  for  3 
nondelivery,  or  to  recover  back  the  purchase  money,  as  money  had  and 
received  by  him  to  the  use  of  the  vendee;  either  could  have  been  main- 
tained, if  it  had  been  the  vendor's  duty  to  deliver  the  slave;  and  he  had 
refused.  The  proper  remedy  here  is  a  special  action  on  the  case  for 
persuading  or  enticing  the  slave  to  abscond. 

APPEAL  from  Harford  County  Court.  This  was  an  action 
of  assumpsit.  The  declaration  contained  three  counts.  The 
first  count  stated  that  the  plaintiff,  (now  appellee,)  being  the 
owner  of  a  negro  man  slave  named  Isaac,  sold,  conveyed  and 
delivered,  the  said  slave  to  the  defendant,  (the  appellant,)  to  be 
holden  in  mortgage  as  a  pledge  and  security  for  the  payment  of 
the  sum  of  $404  61,  due  from  the  plaintiff  to  the  defendant, 
and  the  defendant  did  then  agree,  assume  and  promise,  that  he 
would  return  and  deliver  the  said  negro  to  the  plaintiff,  on  pay- 
ment of  the  said  sum  of  money;  and  although  the  money  was 
afterwards  paid  by  the  plaintiff  to  the  defendant  in  discharge 
of  the  pledge  of  the  said  slave,  yet  the  defendant  neglected  and 
refused  to  deliver  the  said  slave,  &c.  The  second  count  was 
for  money  had  and  received.  The  third  count  stated  that  the 
defendant,  being  the  owner  and  possessor  of  another  slave  call- 
ed Isaac,  did  agree  and  contract  with  the  plaintiff,  that  if  he 
would  pay  to  the  defendant  the  sum  of  $404.61,  as  the  pur- 
chase money  and  consideration  therefor,  the  defendant  would 
sefl  and  deliver  the  said  slave  to  him  the  plaintiff;  and  the 
plaintiff  confiding,  &c.  paid  the  said  sum  of  money  to  the  de- 
fendant, which  the  defendant  accepted  as  and  lor  the  price  of 
the  said  slave;  yet  the  defendant,  not  regarding  his  promise, 
&c.  neglected  and  refused  to  deliver  the  said  slave  to  the  de- 
fendant, although,  &c.  The  defendant  pleaded  non  assumpsit, 
and  issue,  was  joined. 


QF  MARYLAND.  259 


MCRPHET  v.  BARBON. — 1827. 


At  the  trial,  the  plaintiff  produced  one  Aquila  Keen,,  one  of 
the  subscribing  witnesses  to  the  bill  of  sale  first  herein  after  set 
forth,  who  proved  that  he  was  requested,  by  the  plaintiff  and 
defendant,  to  witness  the  execution  of  the  bill  of  sale;  which 
he  did;  that  when  the  plaintiff  had  signed  the  same,  he  request- 
ed the  defendant  to  relate  to  the  witness  the  understanding  be- 
tween them,  respecting  the  negro  Isaac,  named  in  the  bill  of 
sale.  In  answer  thereto,  the  defendant  replied,  that  the  under- 
standing was  that  the  plaintiff  was  to  have  the  said  negro  again, 
provided  he  paid  the  defendant  the  money  mentioned  in  the 
bill  of  sale,  within  four  months,  if  he  wanted  the  said  negro 
for  his  own  use.  The  same  witness  also  gave  evidence,  that 
when  the  plaintiff  and  defendant  came  out  of  the  house,  short- 
ly after  executing  the  bill  of  sale,  the  plaintiff,  seeing  the-  said 
negro,  observed  to  the  defendant,  that  it  was  a  lucky  thing  that 
Isaac  was  there,  that  he  might  take  him,  as  he  was  his  proper- 
ty, or  words  to  that  effect.  The  bill  of  sale,  which  was  also 
read  in  evidence,  was  dated  the  10th  of  April  1818,  whereby, 
in  consideration  of  the  sum  of  $404  61,  Barron  bargained, 
sold  and  delivered  to  Murphey,  his  negro  man  Isaac.  The 
negro  therein  mentioned  was  in  pursuance  thereof  delivered  to 
the  defendant.  The  plaintiff  also  gave  in  evidence,  that  he  did, 
on  the  7th  of  July  next,  after  the  execution  of  the  said  bill  of 
sale,  call  on  the  defendant  and  pay  him  the  consideration 
money  mentioned  therein;  and  that  the  defendant  did  execute 
and  deliver  to  the  plaintiff  a  receipt  for  the  money  so  paid;  that 
at  the  time  of  the  payment  of  the  money,  the  plaintiff  demand- 
ed of  the  defendant  that  he  should  deliver  up  the  bill  of  sale; 
to  which  the  defendant  objected,  but  stated  that  he  would  agree 
to  whatever  a  certain  Walter  T.  Hall,  a  magistrate  in  the  vi- 
cinity, should  say  he  ought  to  do  in  this  respect.  That  the 
plaintiff  then  brought  a  letter  from  Walter  T.  Hall  to  the  de- 
fendant, in  which  he  did  advise  the  defendant  to  give  up  the 
bill  of  «sale,  which  the  defendant  did  accordingly  deliver  up  to 
the  plaintiff;  and  also  proved  by  Walter  T.  Hall  the  acknow- 
ledgment of  the  defendant  that  he  had  received  from  the  plain- 
tiff the  full  amount  of  the  consideration  money  mentioned  in 
the  said  bill  of  sale;  that  when  the  plaintiff  called  upon  the  said 
witness  to  get  the  said  letter  to  the  defendant,  he  shoived  to 


260  CASES  IN  THE  COURT  OF  APPEALS 

MUHPHET  v.  BAIUION. — 1827. 

the  witness  the  receipt  which  he  had  obtained  from  the  defen* 
dant;  and  that  the  said  receipt  contained  no  clause  or  condition 
whatever,  but  was  merely  a  receipt  for  so  much  money  for  the 
said  negro  Isaac.  And  by  another  witness  proved,  that  on  the 
said  seventh  day  of  July,  the  plaintiff,  after  he  had  so  paid  the 
money  to  the  defendant,  went  to  take  possession  of  the  said 
negro,  who  had,  previously  thereto,  been  hired,  by  the  defen- 
dant, to  a  certain  Charles  G.  Hall,  but  when  he  went  into  the 
harvest  field,  where  the  labourers  of  the  said  C.  G.  Hall  were 
at  work,  he  found  that  the  said  negro  had  absconded,  about  an 
hour  before  his  arrival,  and  left  his  cradle  in  the  harvest  field; 
and  that  he  never  gained  possession  of  said  negro,  who  since 
then,  has  not  been  found.  And  further  produced  a  certain 
Thomas  H  Griffith,  who  proved  that  the  defendant  did,  on 
the  eighth  day  of  July,  in  the  same  year,  declare  and  say,  that 
as  he  had  understood  that  the  plaintiff  intended  selling  said  ne- 
gro out  of  the  state,  he  should  not  gain  possession  of  him;  and 
that  the  defendant  did  direct  one  of  his  female  slaves  to  go  and 
give  information  to  the  said  negro  Isaac  of  the  intention  of 
the  plaintiff  to  dispose  of  him  out  of  the  state;  but  that  he  did 
not  see  the  said  female  slave  obey  the  said  order,  and  did  not 
know  that  the  information  was  conveyed  to  the  said  negro  Isaac 
by  her,  then,  or  at  any  other  time;  or  whether  the  same  was 
conveyed  to  the  said  Isaac  either  by  the  defendant  or  by  his 
orders.  The  defendant  then  produced  one  John  Murphey, 
junior,  a  son  of  the  defendant,  also  a  subscribing  witness  to  the 
said  bill  of  sale,  who  proved,  that  on  the  same  day  of  the  ex- 
ecution of  the  said  bill  of  sale,  and  delivery  aforesaid  of  said 
negro,  shortly  thereafter,  the  plaintiff  complained  to  the  de- 
fendant that  the  sum  which  he  had  received  for  the  said  negro 
was  less  than  he  was  worth.  Whereupon  the  defendant  pro- 
mised the  plaintiff,  that  if  he  wanted  the  said  negro  for  his  own 
use,  and  would  not  sell  him  out  of  the  state,  if  he  would,  at 
any  time  within  four  months  from  the  execution  of  the  said 
bill  of  sale,  pay  and  satisfy  him  the  amount  of  the  considera- 
tion money,  stated  in  the  said  bill  of  sale,  he  would  relinquish 
to  the  plaintiff  all  the  right  of  said  negro  so  as  aforesaid  con- 
veyed to  him;  and  that  on  the  said  seventh  day  of  July,  at  the 
time  when  the  consideration  money  aforesaid  was  paid  to  the 


OP  MARYLAND.  261 


MUKPHEY  v.  BAHHON. — 1827. 


plaintiff,  he  did  declare  and  say  to  the  defendant  that  he  di4 
exonerate  him  from  the  delivery  of  the  said  negro;  that  he 
knew  where  he  was  hired ;  that  he  would  take  him  where  he 
was,  and  as  he  was.  That  on  the  morning  of  the  8th  of  July 
1818,  the  plaintiff  called  on  the  defendant,  and  stated  to  him 
that  he  had  lost  or  mislaid  the  receipt  for  the  money  paid  by 
him,  on  the  day  before,  and  requested  another;  to  which  the 
defendant  assented,  taking  first  the  following  acknowledgment: 
"I  hereby  acknowledge  I  have  lost  or  mislaid  the  receipt  John 
Wurphey  gave  me  yesterday,  for  four  hundred  and  ten  dollars 
and  sixty-seven  cents,  which  is  void  if  found. 

Ellis  Barren, 
July  8th,  181S." 

And  then  gave  the  following  his  second  receipt:  "Received 
July  Sth,  1818,  of  Ellis  Barron,  Four  hundred  and  ten  dollars 
and  sixty-seven  cents;  it  will  be  in  full  for  negro  Isaac,  in  case 
he  is  not  conveyed  out  of  the  state  ot  Maryland  before  the 
eighth  of  July,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  nineteen. 

John  M.urphey." 

And  also  proved,  by  the  said  John  ftlurphey,  junior,  that 
the  following  was  brought  some  days  afterwards  to  the  defen- 
dant, by  the  plaintiff,  and  delivered  by  him:  "Received,  July 
7th,  1818,  of  Mr.  Ellis  Barron,  four  hundred  and  ten  dollars 
and  sixty-seven  cents,  in  full  for  all  my  right,  claim  and  in- 
terest, of  negro  Isaac,  which  I  purchased  of  him  in  April  last, 
provided  the  said  Barron  does  not  sell,  or  cause  to  be  sold, 
negro  Isaac,  out  of  the  state  of  Maryland,  for  one  year  from, 
this  date. 

John  Murphey, 
Test. — John  Murphey,  Junr." 

And  proved,  by  the  said  witness,  that  the  aforegoing  receipts 
were  the  original  receipts  which  were  given  by  the  defendant 
to  the  plaintiff.  And  also  proved  by  the  same  witness  the  ex- 
ecution and  delivery,  by  the  plaintiff  to  the  defendant,  ol  the 
following  bond  or  instrument  of  writing:  "Know  all  men  by 
these  presents,  that  I,  Ellis  Barron,  of  Harford  county,  and 
state  of  Maryland,  am  held  and  firmly  bound  by  these  pre- 
sents, unto  John  Murphey,  of  the  county  and  state  aforesaid,. 


262  CASES  IN  THE  COURT  OF  APPEALS 

MURPHEY  v.  BARROX. — 1827. 

in  the  just  and  full  sum  of  two  hundred  and  fifty  dollars,  in 
case  I  the  said  Ellis  Barron  shall  sell  or  cause  to  be  sold  negro 
Isaac,  formerly  the  property  of  John  Forwood,  deceased,  or 
exported  out  of  the  state  of  Maryland  for  one  year,  against  hie 
will,  from  this  date.  As  witness  my  hand  and  seal  this  eighth 
day  of  July,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  eighteen. 

E.  JSarron,  (Seal.) 
Test. — John  Murphey,  Junr". 

The  defendant  also  proved  by  the  same  witness,  that  on  the 
said  eighth  of  July,  after  the  plaintiff  had  made  an  unsuccessful 
effort  to  gain  possession  of  the  said  negro  Isaac,  he  went  to  the 
defendant's  house,  and  announced  to  him  that  the  'said  negro 
had  run  away.  To  which  the  defendant  replied  he  had  taken 
away  his  cradle,  and  he  supposed  he  should  lose  it;  and  that 
the  plaintiff  stated,  that  if  he  had  taken  away  his  cradle,  the 
defendant  should  lose  nothing  by  it,  but  that  he  would  pay  him 
for  it.  And  proved,  by  Charles  G.  Hall,  that  about  a  year 
afterwards  the  plaintiff  called  upon  the  said  Charles  G.  Hall, 
and  stated  that  as  the  negro  was  his,  he  must  pay  to  him  his 
harvest  wages.  The  defendant  then  prayed  the  following  di- 
rections of  the  court  to  the  jury.  1st.  That  if  the  jury  be- 
lieve that  the  plaintiff,  on  the  payment  of  the  money  to  the  de- 
fendant in  July,  exonerated  the  defendant  from  the  delivery  of 
the  negro  slave  aforesaid,  and  agreed  to  take  him  wherever  he 
was,  the  plaintiff  is  not  entitled  to  recover  for  the  nondelivery 
of  the  said  negro;  and  2 nelly.  That  if  they  should  further  be- 
lieve that  the  defendant  induced,  enticed  and  persuaded  the 
said  negro  to  run  away,  still  the  plaintiff  is  not  entitled  to  re- 
cover on  the  count  for  money  had  and  received,  nor  on  either 
of  the  special  counts  in  the  declaration.  The  first  prayer  the 
Court,  [Hanson,  and  Ward,  A.  J.]  granted;  and  did  then  and 
there  direct  the  jury  accordingly;  but  the  second  prayer  a- 
feove  mentioned  the  court  refused  to  grant.  The  defendant  ex- 
cepted;  and  the  verdict  and  judgment  being  against  him,  he 
appealed  to  this  Court. 

The  cause  was  argued  at  December  term  1825,  before  BU- 
CHANAN, Ch.  J.  and  MARTIN,  and  STEPHEN,  J. 


OF  MARYLAND.  263 


MURFHET  v.    HAIUION. — 1827. 


Mitchell,  for  the  Appellant,  contended,  1.  That  the  second 
direction  prayed  ought  to  have  been  given  by  the  court  below; 
and  that  the  declaration  ought  to  have  contained  a  special  count 
for  enticing  away  the  plaintiff's  slave.1  2.  That  the  promise 
and  undertaking  laid  in  the  first  and  third  counts  were  void 
in  law  for  want  of  consideration  and  mutuality,  &c.  3.  That 
material  substantial  averments  were  wanting  in  all  the  counts 
in  the  declaration;  and  the  court  below  ought  to  have  given 
judgment  against  the  plaintiff  below.  He  referred  to  Cortel- 
you  vs  Lansing,  2  Caine's  Cases,  205.  Jones  on  Bailment  7 
86,  and  Appendix  xvi.  Bank  of  England  vs  Glover,  2  Ld. 
Raym.  753.  As  to  the  misjoinder  of  causes  of  action,  he  cited 
1  Chitty's  Plead.  1^9.  Cory  ton  vs  Lythebe,  2  Saund.  117? 
(note. ) 

On  the  bill  of  exceptions,  he  referred  to  Bird  vs  Randall, 
1  W.  Blk.  373.  1  Sac.  M.  tit.  fictions  on  the  Case,  (F)  87. 
He  contended  that  no  one  of  the  counts  in  the  declaration  was 
sustained  by  the  proof;  and  that  parol  evidence  was  not  admis- 
sible to  explain  a  written  contract. 

R.  Johnson,  for  the  Appellee.  As  there  was  a  general  ver- 
dict, any  defective  count  in  the  declaration  is  cured  by  the  act 
of  1809,  ch.  153.  Here  the  first  is  a  good  count.  This  is 
not  an  action  for  a  tort  It  is  upon  a  contract.  Trover  might 
have  been  brought,  but  the  plain-tiff  may  waive  the  tort,  and  go 
upon  the  promise  and  undertaking.  He  may  recover  upon  the 
second  count,  there  being  a  breach  at  the  end  of  the  declarati- 
6n.  If  there  is  a  defect  at  all,  it  is  merely  formal,  which  this 
court  will  not  regard.  1  Chitty's  Plead.  98,  99. 

Mitchell,  in  reply,  referred  to  Raborg  vs  Kirwan,  1  flarr. 
4*  Johns.  296. 

Curia  adv.  vult. 

STEPHEN,  J.  at  this  term,  delivered  the  opinion  of  the  Court. 
On  the  10th  of  April  1818,  the  appellee  sold  to  the  appellant,  a 
negro  man  named  Isaac,  for  the  consideration  of  $404  61,  and 
gave  him  an  absolute  bill  of  sale  of  the  said  negro;  but  imme- 
diately after  the  execution  of  the  bill  of  sale,  Barron,  the  ap- 
pellee, requested  Murphy,  the  vendee  and  appellant,  to  stale 


264  CASES  IN  THE  COtTRT  OF  APPEAt# 

MURPHET  v.  BARROX. — 1827. 

lo  one  of  the  witnesses  to  the  bill  of  sale  the  understanding  be- 
tween them  respecting  the  negro,  Isaac,  when  the  defendant, 
Murphey,  said  the  understanding  between  them  was,  that  the 
plaintiff,  Barron,  was  to  have  the  said  negro  again,  provided  he 
paid  the  defendant,  Murphey,  the  money  mentioned  in  the  bill 
of  sale  within  four  months,  if  he  wanted  the  said  negro  for  his  own 
xise.  The  plaintiff,  to  support  his  action,  gave  in  evidence  to  the 
jury,  that  on  the  seventh  of  July,  next  after  the  execution  of  the 
said  bill  of  sale,  he  called  on  the  defendant  and  paid  him  the  con- 
sideration money  mentioned  in  the  said  bill  of  sale,  and  that  the 
defendant  did  execute  and  deliver  to  him  a  receipt  for  the  money 
so  paid,  stating  it  to  be  in  full  for  said 'negro  Isaac,  if  not  sold 
out  of  the  state  within  one  year  from  that  time.  The  plaintiff 
also  gave  in  evidence  to  the  jury,  that  on  the  day  he  paid  the 
money  to  the  defendant,  he  went  to  take  possession  of  the  said 
negro,  who-  had  previously  thereto  been  hired  by  the  defendant 
to  a  certain  Charles  G.  Hall,  but  that  when  he  went  into  the 
harvest  field,  where  the  labourers  of  the  said  Hall  were  at 
work,  he  found  that  the  said  negro  had  absconded  about  an 
hour  before  his  arrival,  and  that  he  never  gained  possession  of 
the  said  negro,  who  since  then  has  not  been  found.  The  plain- 
tiff further  proved  to  the  jury,  that  the  defendant  did,  on  the 
eighth  day  of  July,  in  the  same  year,  declare  that  as  he  had  un- 
derstood the  plaintiff  intended  selling  the  said  negro  out  of  the? 
state,  he  should  not  gain  possession  of  him,  and  that  the  defen- 
dant did  direct  one  of  his  female  slaves  to  go  to  and  inform  the 
said  Isaac  that  the  plaintiff  intended  to  sell  him  out  of  the 
state;  but  did  not  prove  that  the  information  was  communicat- 
ed to  the  said  Isaac  by  the  said  slave,  as  directed  by  the  de- 
fendant. The  defendant,  to  support  the  issue  on  his  part,  prov- 
ed to  the  jury,  that  on  the  seventh  day  of  July,  when  the  con- 
sideration money  was  paid  by  the  plaintiff  to  the  defendant,  he 
did  declare  and  say  to  the  defendant,  that  he  did  exonerate  him 
from  the  delivery  of  the  said  negro,  that  he  knew  where  he 
was  hired,  and  that  he  would  take  him  where  he  was,  and  as 
he  was..  Whereupon  the  defendant  prayed  the  opinion  of  the 
court,  and  their  direction  to  the  jury,  that  if  they  should  be- 
lieve that  the  defendant  induced,  enticed  and  persuaded,  the 
said  negro  to  run  away,  still  the  plaintiff  was  not  entitled  to 


OF 


MUHPHET  v.  BARRON. — 1827. 


recover  on  his  count  for  money  had  and  received,  nor  on  ei- 
ther of  the  special  counts  in  the  declaration;  which  opinion 
and  direction  the  court  refused  to  give;  to  which  refusal  the  de- 
fendant excepted.  And  the  question  now  to  be  decided  by  this 
court  is,  whether  the  court  below  did  right  in  refusing  to  in- 
struct the  jury  as  prayed;  or  in  other  words,  whether,  upon 
the  facts  above  stated,  the  action  for  money  had  and  received 
can  be  sustained?  The  action  for  money  had  and  received  is  an 
equitable  action,  and  equally  as  remedial  in  its  effects,  as  a  bill 
in  equity.  Evans,  in  his  Essay  on  the  action  for  money  had 
and  received,  23,  states  the  principle  to  be,  that  a  suit  in  equity 
must  be  considered  as  being  merely  equivalent  to  an  action  for 
money  had  and  received;  and  one  of  the  grounds  upon  which 
this  action  can  be  supported,  is  where  money  has  been  paid  up? 
on  a  consideration  which  has  failed.  It  was  contended,  in  the- 
course  of  the  argument  before  this  court,  that  upon  the  pay- 
ment of  the  purchase  money  by  the  plaintiff  to  the  defendant, 
the  property  revested  in  the  plaintiff,  and  that  the  action  should 
have  been  trover.  In  answer  to  that  argument  it  may  be  re- 
marked, that  by  the  agreement  of  the  parties,  the  defendant 
was  expressly  absolved  by  the  plaintiff  from  any  obligation  to 
deliver  the  negro  Isaac  to  him,  he  having  expressly  agreed  to 
take  possession  of  him  where  he  was  hired.  But  il  is  not  ne- 
cessary to  decide  whether  or  not  this  is  a  case  where  the  ac- 
tion of  trover  might  be  supported;  for  if  the  action  of  assump- 
sit  for-  money  had  and  received  is  sustainable,  there  is  no  error 
in  the  opinion  of  the  court  below,  and  their  judgment  ought  to 
be  affirmed.  In  Moses  vs  Macferlan,  2  Burr.  1012,  Ld. 
Mansfield  says  "the  gist  of  this  kind  of  action  is,  that  the  de- 
fendant, upon  the  circumstances  of  the  case,  is  obliged  by  the. 
ties  of  natural  justice  and  equity,  to  refund  the  money. " 
Evans,  in  his  Essays,  17,  speaking  of  a  failure  of  consideration 
by  the  misconduct  of  the  defendant,  refers  to  the  case  of  Dutch 
i)s  Warren,  which  is  particularly  adverted  to  by  Ld.  Mans- 
Jield  in  Moses  vs  Macferlan.  That  case  was  as  follows:  Up- 
on the  18th  of  August  1720,  on  payment  of  £262  10,  by  the 
plaintiff  to  the  defendant,  the  defendant  agreed  to  transfer  him 
five  shares  in  the  Welch  copper  mines,  at  the  opening  of  the 
books;  and  for  security  of  his  so  doing  gave  him  this 
VOL.  I  34 


$66  CASES  IN  THE  COUftT  OF  APPEALS 

MUHPHET  v.  HARROW. — 1827. 

18th  of  August  1720.  I  do  hereby  acknowledge  to  have  re- 
ceived of  Philip  Dutch  £262  10,  as  a  consideration  for  the 
purchase  of  five  shares;  which  I  do  hereby  promise  to  transfer 
to  the  said  Philip  Dutch  as  soon  as  the  books  are  opened;  be- 
ing five  shares  in  the  Welch  copper  mines.  Witness  my  hand. 
Robert  Warren.  The  books  tvere  opened  on  the  22d  of  the 
same  month,  when  Dutch  requested  Warren  to  transfer  to  him 
the  said  five  shares,  which  he  refused  to  do;  and  told  the  plain- 
tiff he  might  take  his  remedy.  Whereupon  the  plaintiff  brought 
an  action  for  money  had  and  received,  for  the  consideration  mo- 
ney paid  by  him.  An  objection  was  taken  at  the  trial,  that  the 
action  would  not  lie;  but  that  the  action  should  have  been 
brought  for  the  nonperformance  of  the  contract.  But  the  ob- 
jection was  overruled  by  the  court,  who  left  it  to  the  conside- 
ration of  the  jury,  whether  they  would  not  make  the  price  of 
the  said  stock  as  it  was  upon  the  22d  of  August,  when  it  should 
have  been  delivered,  the  measure  of  the  damages;  which  they 
did;  and  gave  the  plaintiff  but  £175  damages.  And  a  case  be- 
ing made  for  the  opinion  of  the  court  of  common  pleas,  the 
action  was  resolved  to  be  well  brought.  The  court  said,  that 
the  extending  those  actions  depends  on  the  notion  of  fraud.  If 
one  man  takes  another's  money  to  do  a  thing,  and  refuses  to  do 
it,  it  is  a  fraud;  and  it  is  at  the  election  of  the  party  injured 
either  to  affirm  the  agreement,  by  bringing  an  action  for  the- 
nonperformance  of  it;  or  to  disaffirm  the  agreement  ab  initio, 
by  reason  of  the  fraud,  and  bring  an  action  for  money  had  and 
received  to  his  use.  So  in  the  case  now  before  this  court,  if  it 
had  been  the  duty  of  the  defendant  to  deliver  the  negro  to  the 
plaintiff,  and  he  had  refused  to  do  so  according  to  contract,  the 
plaintiff  would  have  had  the  right  of. electing  either  to  hare  af- 
firmed the  agreement,  by  bringing  an  action  for  the  nonper- 
formance of  it,  or  to  have  disaffirmed  it  ab  initio,  by  reason  of 
the  fraud,  and  to  have  brought  an  action  for  money  had  and  re- 
ceived to  his  use;  but  the  evidence  is  full  and  explicit,  that  from 
the  performance  of  that  duty  he  was  expressly  discharged  by 
the  plaintiff  himself.  The  other  two  counts  being  for  the  non- 
delivery of  the  slave,  according  to  the  contracts  as  therein  stated, 
it  follows,  of  course,  that  the  judgment  of  the  court  below  sup- 
porting the  action,  must  be  reversed.  On  payment  of  the  pur~ 


OF  MARYLAND.  267 


LEADERHAM  w.  NICHOLSOIC. — 1827. 


phase  money  by  Barron  to  Murphey,  the  property  vested  in 
Barren,  and  his  proper  remedy  to  redress  the  injury  he  had 
sustained,  would  have  been  a  special  action  on  the  case  against 
Murphey  for  enticing  or  persuading  his  slave  to  abscond  from 
his  service. 

JUDGMENT  REVERSED. 


LEADENHAM'S,  Ex'r.  vs.  NICHOLSON,  et  al. — June,  1827. 

The  lands  of  an  intestate  being  incapable  of  a  beneficial  division,  on  the  pe- 
tition of  his  heirs,  and  by  the  «rder  of  the  court  of  chancery,  were  sold, 
and  the  sale  ratified,  after  this  ratification,  and  as  to  part  of  the  proceeds 
prior  to  any  order  or  decree  adjudging  who  was  entitled  thereto,  one  of 
the  heirs,  a  married  woman,  died,  her  husband,  who  survived  her,  was 
a  party  to  the  petition,  also  died.  Held,  that  the  husband'^  representa- 
tives were  not  entitled  to  the  wife's  portion  of  that  part  of  the  proceeds 
of  her  father's  estate,  respecting  which  no  order  or  decree  of  distribu- 
tion had  been  passed  at  the  time  of  the  husband's  death,  but  that  it  be- 
longed to  her  personal  representatives. 

The  representatives  of  a  husband  who  survived  his  wife,  are  entitled  to  the 
cJioses  in  action  of  the  wife,  where  the  husband  had  either  reduced  them 
into  possession,  or  obtained  judgment  for  them  at  law  or  in  equity,  either 
in  his  own  favour,  or  in  favour  of  himself  and  wife. 

In  equity  money  directed  to  be  laid  out  in  land,  will  before  investment,  be 
considered  as  land;  and  land  directed  to  be  sold  and  converted  into  money, 
will,  before  a  sale,  be  considered  as  money,  and  pass  is  such. 

On  an  appeal  from  chancery,  the  appellate  court  decrees  only  in  relation  to 
the  rights  of  those  who  are  parties  to  the  appeal. 

APPEAL  from  the  Court  of  Chancery.  The  nature  of  the 
6ase  will  sufficiently  appear  from  the  decree  of  the  chancellor, 
and  the  statement  made  by  the  judge  who  delivered  the  opinion 
of  this  court. 

BLAND,  Chancellor,  (September  term,  1824,)  It  appears 
that  Joseph  Williams  died  seized  in  fee  of  about  175  acres  of 
land,  and  having  made  no  will,  it  descended,  according  to  law, 
to  his  children,  Thomas,  Joseph,  Sarah  the  wife  of  Knigh* 
ton,  Mary  the  wife  of  Leadenham,  and  Elizabeth  Jinn  Ball, 
the  granddaughter  and  heir  of  the  intestate's  daughter  Eliza- 
beth. The  land  being  admitted  to  be  incapable  of  division  was 
ordered  to  be  sold.  Thomas  became  the  purchaser  at  the  sale; 
but,  after  giving  bond  for  the  purchase  money,  he  sold  the 


268        CASES  IN  THE  COURT  OP  APPEALS 

t,EAI)ENHAM    V.    NICHOLSON. 1827. 

whole,  including  the  right  to  his  own  share,  to  James  Nichol- 
son, who  it  was  agreed  should,  as  to  all  liability  and  benefit,  ex- 
actly assume  his  place.  No  notice  was  taken  in  the  bill,  nor  in 
the  answer,  nor  in  the  order  of  sale,  nor  in  the  sale  itself,  of 
the  fact,  ihaiJohn  JBallihe  grandson  of  the  intestate,  and  father 
of  the  defendant  Elizabeth  Ann  Sail,  had  left  a  widow,  who 
was  entitled  to  dower  in  the  undivided  share  which  her  hus- 
band had  inherited  from  his  grandfather.  But  this  circumstance, 
and  the  claim  of  John  Sail's  widow,  who  had  become  the  wife 
of  Samuel  Jones,  was,  after  the  sale,  brought  before  the  court  by 
their  petition,  in  which  they  ask  only  for  an  equivalent  out  of 
the  proceeds.  Benjamin  Welch,  having  administered  on  the 
estate  of  John  Ball,  made  sundry  disbursements  and  payments 
in  the  course  of  his  administration;  and,  on  the  final  settlement 
of  his  accounts,  it  appeared  that  the  assets  and  personal  estate 
of  his  intestate  had  been  wholly  exhausted,  and  that  he  had 
overpaid.  Whereupon  he  came  into  court  to  ask  for  a  reim- 
bursement, as  a  creditor,  out  of  so  much  of  the  proceeds  of 
the  real  estate  of  his  intestate  as  might  be  within  reach  of  the 
court.  And,  it  being  one  of  the  ordinary  and  peculiar  powers 
of  this  court,  under  such  circumstances,  to  apply  the  real  es- 
tate, after  the  personal  had  been  exhausted,  to  the  payment  of 
the  debts  of  the  deceased  owner,  he  was  ordered  to  be  paid  ac- 
cordingly. It  further  appears,  that  sundry  portions  of  the  pro- 
ceeds of  the  sale  of  the  real  estate  of  the  intestate  have  been 
collected  and  distributed  under  the  authority  of  the  court;  and 
that  suits  were  brought,  and  judgments  obtained  by  the  trus- 
tee against  the  purchaser  of  the  land,  for  the  purchase  money; 
•when,  in  the  spring  of  the  year  1821,  Mary,  the  wife  of  Leaden- 
ham,  died  without  ever  having  had  any  issue  j  and  in  August 
of  the  same  year  her  husband  died. 

The  most  important  and  leading  question  in  this  case  is, 
whether  so  much  of  the  proceeds  of  Mary's  share  of  the  land  she 
inherited  from  her  father,  as  was  not  collected  and  distributed, 
or  actually  paid  over,  shall  descend  or  pass  as  the  land  itself 
would  have  gone,  or,  like  personal  property,  be  considered  as 
vested  in  her  husband,  and  be  paid  over  to  his  representatives. 
The  determination  of  this  question  must  depend  upon  the  ef- 
fect which  the  proceedings  of  this  court  may  have  had,  if  any, 


OF  MARYLAND.  269 


LEADENHAM  v.  NICHOLSON. — 1827. 


in  producing  a  change  in  the  nature  of  the  estate  of  Mary.  In 
the  fee  simple  estate  of  Mary,  her  husband  had  no  transmis- 
sible or  permanent  interest  whatever;  never  having  had  issue 
by  her,  born  alive,  he  could  not  have  been  tenant  by  the  curte- 
sy  after  her  death.  During  the  coverture  he  was  merely  the 
possessor  and  steward  in  right  of  his  wife.  The  object  of  Ma- 
ry, and  her  coheirs,  in  bringing  their  case  before  this  court, 
was  to  have  their  respective  portions  given  to  them  in  several- 
ly. And,  in  order  to  obtain  this  object,  they  consented,  and 
the  court  awarded,  that  a  sale  should  be  made,  and  the  pro- 
ceeds brought  into  court  to  be  divided.  To  effect  this  purpose 
the  court  appoiateda  trustee,  who  it  directed  to  sell,  and  in  its 
order  of  sale,  among  other  things,  says  "and  on  the  ratifica- 
tion of  the  sale  and  receipt  of  the  purchase  money,  and  not 
before,  the  trustee  shall,  by  a  good  deed  acknowledged  accord- 
ing to  law,  convey  to  the  purchaser."  In  pursuance  of  this 
order  the  sale  was  made.  Since  this  question  has,  in  no  in- 
stance, so  far  as  I  can  learn,  been  directly  decided,  it  must  now 
be  determined  upon  principle  and  by  analog)*-. 

Upon  a  writ  of  partition,  according  to  the  common  law,  there 
are  two  judgments.  After  the  confession  of  the  action,  or  is- 
sue tried  for  the  plaintiff,  there  is  a  judgment  quod  parfitio 
Jiat,  upon  which  a  writ  is  issued,  commanding  the  sheriff  to 
make  partition;  which  is  done  and  returned  to  the  court  by  him^ 
and  the  twelve  jurors  under  their  hands  and  seals.  Whereup- 
on the  final  judgment  of  the  court  is,  "therefore  it  is  consider- 
ed, that  the  aforesaid  partition  be  holden  firm  and  effectual  for- 
ever, &c."  This  judgment,  when  made  by  writ,  after  the  ap- 
pearance of  the  party,  shall  not  be  defeated  even  though  made 
against  a  feme  covert,  or  though  not  equal,  and  any  one  of  the 
parties  be  an  infant.  2  Sellon's  Pr.  222.  In  this  case,  it  is 
evident,  that  the  nature  of  the  estate  is  not  changed  by  the  ju- 
dicial proceedings  until  aiter  the  final  judgment.  'And,  until 
that  point  of  time,  the  same  consequences  would  ensue  on  the 
death  of  a  joint  tenant  or  parcener,  as  if  no  judicial  proceed- 
ings had  been  commenced  for  the  purpose  of  effecting  a  parti- 
tion. 

It  is  said  by  Lord  Redesdale,  that  partition   at  law  and  in 
equity  are  different  things.     The  first  operates  by  judgment  of 


270  GASES  IN  THE  COURT  OF  APPEALS 

LEADEVHAM  v.  NICHOLSON  — 1827. 

law,  and  delivery  up  of  possession  in  pursuance  of  it,  which 
concludes  all  the  parties  to  it.  Partition  in  equity  proceeds 
upon  conveyances  to  be  executed  by  the  parties;  and  if  the 
parties  be  not  competent  to  execute  the  conveyances,  the  par- 
tition cannot  be  effectually  had.  Whaley  vs  Dawson,  2  Sch. 
4*  Lef.  372.  But  the  difference  here  spoken  of  clearly  re- 
lates to  the  mode  of  proceeding,  not  to  the  stage  of  the  ju- 
dicial proceeding  when  the  estate  ceases  to  be  joint  and  be- 
comes an  estate  in  severally;  as  to  which  there  is,  evidently, 
no  difference  between  the  principles  of  law  and  equity.  At 
law  this  mutation  is  effected  by  the  final  judgment,  which  is 
the  last  act  of  the  court,  when  the  parties  are  dismissed  with- 
out further  day  in  court,  the  whole  object  of  the  suit  having 
been  fully  attained;  so,  1oo,  in  equity,  when  the  conveyances 
are  executed  by  the  parties,  and  approved  by  the  chancellor, 
there  is  an  end  of  the  suit,  and  the  nature  of  the  estate  is  final- 
ly and  conclusively  changed,  and  the  court  has  no  further  pow- 
«r  over  the  subject  that  had  been  submitted  to  it.  Similar 
views  of  this  matter  seem  to  have  been  taken  in  a  neighbour- 
ing state,  in  a  case  where  a  question  analogous  to  that  now  un- 
der consideration  was  determined  by  the  court.  Yoke  vs  Bar- 
net^  1  Binney,  364. 

The  acts  of  assembly  of  this  state  have  made  provision  for 
the  partition  of  the  estates  of  intestates  by  the  courts  of  law, 
and  also  by  the  courts  of  equity.  The  courts  of  law  are  not 
merely  invested  with  power  to  make  partition;  but  the  mode 
of  proceeding  in  such  cases  is,  in  many  respects,  directed  and 
specified.  On  the  other  hand  the  courts  of  equity  are  clothed 
with  authority  to  make  partition,  and  there  is  no  specification 
of  the  mode  in  which  they  shall  proceed,  at  least  so  far  as  re- 
gards this  question  now  under  consideration.  In  the  case  of 
The  State  use  of  Rogers  vs  Krebs  fy  others,  (6  Harr.  fy  Johns. 
31,^  determined  by  the  court  of  appeals  at  June  term,  1823, 
it  appeared  that  application  had  been  made  to  a  court  of  law  to 
make  partition  of  an  intestate's  estate,  and  in  order  to  effect  the 
division  sought  for,  the  estate  was  sold,  and  the  purchase  money 
paid  into  the  hands  of  the  commissioners,  and  the  judicial  pro- 
ceeding at  an  end.  The  question  was,  whether  the  share  of  a 
feme  covert,  in  that  situation,  should  be  considered  as  real  or 


OF  MARYLAND.  271 


LKADK.VHAM  i>.   NICHOLSON. — 1827. 


personal  property?  The  court  of  appeals  recite  that  the  "laws 
direct  the  commissioners,  who  have  sold  for  cash,  after  the  rati- 
fication of  the  sale,  and  the  deduction  of  the  expenses  to  be 
ascertained  by  the  court,  to  divide  justly  the  purchase  money 
among  the  several  persons  interested,  according  to  their  respec- 
tive titles  to  the  estate;  and  when  the  estate  is  sold  by  the  com- 
missioners on  a  credit,  bonds  are  to  be  taken  by  them  for  the 
purchase  money,  to  each  representative  respectively,  accord- 
ing to  his  or  her  proportional  part  of  the  net  amount  of  sales." 
And  then  they  declare  their  opinion  to  be,  "that  the  mutation 
of  her  estate  from  real  to  personal,  may  be  determined  to  be 
complete,  when  the  commissioners*  sale  is  ratified  by  the  court, 
and  the  purchaser  has  complied  with  the  terms  of  it,  by  pay- 
ing the  money,  if  the  sale  is  for  cash,  or  by  giving  bonds  to 
the  representatives,  if  the  sale  is  on  a  credit.  The  bond  passed 
to  the  wife  by  the  purchaser  is  a  chose  in  action,  as  is  the 
money  in  the  hands  of  the  commissioners,  if  withheld  from 
her;  both  liable  to  be  sued  for  and  recovered  by  the  husband  at 
his  pleasure." 

Hence  it  appears  that  the  point  of  time  when  the  partition 
was  complete,  and  the  estate  and  the  nature  of  the  property 
changed,  was  that,  when  the  court  had  finally  acted  upon  the 
case,  and  the  proceeds  were  paid  over,  secured,  or  placed  under 
the  entire  control  of  the  husband,  without  being  obliged  to 
apply  to  a  court  of  chancery  to  enable  him  to  obtain  possession 
of  them.  It  may  be  regarded  as  a  general  rule,  that  a  court  of 
equity  will,  in  all  cases,  carefully  preserve  the  character  or  na- 
lure  of  the  estate,  so  as  to  leave  an  infant  or  a  feme  covert  in 
the  unimpaired  enjoyment  of  every  right,  privilege,  or  control 
over  the  property,  which  might  have  been  exercised  when,  and 
in  the  shape  in  which  it  originally  vested.  As  where  the  money 
of  an  infant  is  laid  out  in  the  purchase  ot  land.  It  may  be  for 
the  benefit  of  an  infant,  in  many  cases,  that  the  money  should 
be  laid  out  in  land,  if  he  should  live  to  become  adult;  but  if  he 
does  not,  it  is  a  great  prejudice  to  him,  taking  away  his  do- 
minion, by  the  power  of  disposition  he  has  over  personal  pro- 
perty, so  long  before  he  has  it  over  real  estate.  The  court, 
therefore,  with  reference  to  his  situation,  even  during  infancy, 
as  to  his  powers  over  property,  works  the  change,  not  to  al! 


$72  CASES  IN  THE  COURT  OF  APPEALS 

LEADENHAM  w.  NICHOLSON — .1827. 

intents  and  purposes,  but  with  this  qualification,  that  if  he  lives 
he  may  take  it  as  real  estate,  but  Without  prejudice  to  his  right 
over  it  during  infancy  as  personal  property.  1  Madd.  Ch. 
340.  So,  in  this  case,  the  court  will  continue,  to  the  very  last 
exercise  of  its  authority,  to  consider  this  property  as  Mary's 
real  estate;  because  to  treat  it  as  personalty  would  be  virtually 
to  make  a  transfer  of  it  to  her  husband,  and  deprive  her  of  her 
privilege  of  coming  into  this  court  and  asking  to  have  it  secur- 
ed to  her  separate  use.  Attorney  General  vs  Whorwood,  1 
Ves.  539.  Co.  Litt.  351,  a,  (note  \*)  From  these  authori- 
ties, and  from  others  of  a  similar  nature  which  might  be  re- 
ferred to,  this  principle  is  clear,  that,  whether  the  parties  ap- 
ply to  a  court  of  law,  or  to  a  court  of  equity,  no  change  is  pro- 
duced by  the  mere  operation  of  the  judicial  proceedings,  either 
in  the  character  of  the  estate,  or  in  the  nature  of  the  proper- 
ty, in  reference  to  the  rights  and  power  of  its  owner,  until  the 
tribunal  has  acted  conclusively  and  definitively  upon  the  case. 
But  in  this  instance,  although  the  sale  has  been  long  since  made, 
the  whole  of  the  purchase  money  has  not  even  yet  been  col- 
lected; and  only  a  part  of  that  which  has  been  received  has 
been  distributed.  Nothing  definitive  has  been,  or  can  even 
now  be  done.  Mary's  husband  could  not  have  received  any 
part  of  the  proceeds  of  this  property  without  the  express  order 
of  this  court;  because  no  right  to  it  had  been,  by  any  act  of  the 
Court,  finally  transferred  to,  and  vested  in  him.  If  Mary  had 
at  any  time,  during  her  life,  asked  of  this  court  to  have  secured 
the  proceeds  of  her  share,  before  they  were  paid  over,  to  her 
separate  use  independently  of  her  husband,  her  request  could 
not  have  been  refused.  No  conveyance  for  the  land  has  yet 
been  made  by  the  trustee  to  the  pui  chaser;  and  the  conveyance 
has  been  expressly  ordered  to  be  withheld  until  the  court  is 
informed,  that  the  whole  of  the  purchase  money  had  been  paid. 
There  is,  then,  much  yet  remaining  to  be  done  before  this  case 
can  be  finally  closed;  and  consequently,  so  far,  no  final  change 
has  been  wrought  by  the  proceedings  in  this  case  in  the  charac- 
ter of  the  estate,  or  the  nature  of  the  property  as  respects  the 
destination  of  Mary's  share  after  her  death.  Since  nothing  hav- 
ing been  vested  in  her  husband,  or  placed  under  his  control 
finally  and  independently  of  this  court,  except  that  portion  of 


OP  MARYLAND. 


LEADENHAM  v.  NICHOLSON. — 1827. 


the  proceeds  which  had  been  actually  paid  to  him  before  her 
death;  all  that  now  remains  of  Mary'.?  share  must  descend  and 
pass  as  her  land  would  have  done,  of  the  nature  ot  which  it  is, 
to  her  heirs,  and  not  to  the  representatives  of  her  husband. 

The  corisequence  of  this  conclusion  is,  that  John  Leeds 
Kerr's  claim,  founded  on  an  assignment  of  apart  of  the  contin- 
gent expectancy  of  Mary's  husband,  must  be  altogether  rejected. 
But  as  to  the  introduction  of  claims  of  this  sort,  in  this  manner, 
I  would  observe,  as  a  general  rule,  that  the  court  will  not  allow 
a  claim  of  this  description,  wholly  distinct  in  its  origin  and 
merits  from  the  principal  case,  to  be  thus  introduced  and  de- 
cided, merely  because  the  fund,  out  of  which  payment  is  claim- 
ed, happens  to  be  either  in  court,  or  about  to  be  brought  in. 
Because,  in  cases  of  this  importance,  concerning  land,  the  pro- 
ceedings of  which  are  directed  to  be  recorded,  it  is  highly  im- 
proper that  they  should  be  expensively  and  unnecessarily  in- 
cumbered  with  any  matter  foreign  to  the  immediate  subject  of 
the  suit.  There  is  no  peculiar  equitable  ground  upon  which 
Kerr's  claim  can  be  brought  into  this  case  similar  to  that  on 
•which  Welch's  claim  is  rested;  nor  has  he  succeeded  to  an  en- 
tire share,  as  is  admitted  to  be  the  case  of  Nicholson.  There- 
fore, on  every  account  Kerr's  claim  must  be  rejected.  There 
is  another  excrescence  with  which  this  case  has  been  incumber- 
ed  and  disfigured  that  ought  not  to  have  been  allowed;  that  is 
the  injunction  bill  (a.)  All,  or  the  principal  portion  of  the 
equity  of  that  bill,  was  to  be  found  in  the  proceedings  of  this 
«ase;  this  injunction,  therefore^  was  not  an  original,  but  strict- 
ly and  properly  a  proceeding  auxiliary  to  this  case  with  which 
its  equity  is  so  intimately  interwoven;  and,  consequently,  should 
have  been  obtained  by  a  concise  petition,  and  not  by  a  distinct 
•riginal  bill. 

The  share  of  John  Ball,  the  grandson  of  the  intestate,  de- 
scended to  his  daughter  Elizabeth  Jinn  Ball,  incumbered  with 
debt  and  dower;  therefore,  from  her  share,  the  claim  of  Welch 
must  be  first  deducted,  and  from  the  remainder  the  dower  of 

("a)  That  injunction  was  obtained  by  N'chalxon,  the  purchaser  of  the 
fend  from  T  WilKaraftytii\  one  of  the  grounds  was  a  claim  of  a  cr<<\r.  to 
that  ponion  of  ttie  money  that  T.  Williams  was  entitled  to,  (who  had  trans* 
fem-d  it  to  N~:.ch;>hon,_)  out  of  the  share  that  would  have  gone  to  sirs. 
Ltadf.nhnm,  if  alive. 

VOL.    1  35 


274  CASES  IN  THE  COURT  OF  APPEALS 

LEADENHAM  v.  NICHOLSON. — 1827. 

Elizabeth,  now  the  wife  of  Samuel  Jones,  must  be  next  de- 
ducted. She  appears  to  have  been  only  eighteen  years  of  age 
when  her  right  to  dower  accrued;  she  will,  therefore,  accord- 
ing to  the  rule  of  the  court,  be  allowed  one  sixth  of  the  share 
her  husband  was  entitled  to;  but  as  she  has  been  so  tardy  and 
negligent  in  making  her  claim,  she  will  be  allowed  no  interest. 
But  as  no  final  decree  can  be  had  in  this  case,  until  the  court 
is  furnished  with  an  account  of  the  amount  due  to  each  claim- 
ant, estimated  upon  the  principles  before  laid  down,  the  case 
must  be  referred  to  the  auditor  for  that  purpose.  And  he  is  di- 
rected to  ascertain  from  the  trustee  the  whole  amount  received 
by  him,  and  the  amount  he  has  heretofore  distributed;  to  state 
what  has  been  paid  to  Mary,  or  her  husband,  before  her  death; 
that  is,  assuming  from  the  proofs  that  her  death  happened  before 
the  1st  of  June  1821 ;  and  after  deducting  that  amount,  together 
with  that  which  has  been  upon  similar  principles  distributed  to 
the  other  heirs,  the  residue  to  be  divided  among  the  surviving 
heirs  of  the  intestate,  upon  the  principles  before  mentioned. 
Nicholsoji  is  to  be  considered  as  the  assignee  of  the  share  of 
Thomas;  and  an  account  must  be  so  stated  as  to  show  the  real 
balance,  if  any,  due  on  the  judgment  against  Nicholson.  And 
the  injunction  heretofore  issued  on  his  behalf  shall  be  continu- 
ed until  the  auditor  has  made  his  report,  or  further  order. 

The  auditor  made  his  report  accordingly,  and  the  chancellor 
passed  a  final  decree  directing  how  the  balance  of  the  proceeds, 
received  or  to  be  received,  were  to  be  distributed,  &c.  exclud- 
ing the  claim  of  the  executor  of  Leadenham  to  any  portion  of 
such  balance.  From  which  decree  the  executor  of  Leadenham 
appealed  to  this  court. 

The  cause  was  argued  at  the  last  June  term,  before  BUCHA- 
NAN, Ch.  J.  and  STEPHEN,  ARCHER,  and  DORSEY,  J. 

B.  Johnson,  for  the  Appellant,  referred  to  the  act  of  1819, 
ch,  144,  s.  6.  The  State  use  of  Rogers  vs  Krebs,  et  al.  6 
Harr.  4*  Johns.  31. 

Mitchell  and  Brewer,  jr.  for  the  Appellees.  They  referred 
to  the  acts  of  1785,  ch.  72,  s.  12,  and  1798,  ch.  101,  sub  ch.  5, 
£>\  Q,  Cooper's  Plead.  64  to  69.  Wright  vs  Morley,  11  VesS 


OF  MARYLAND^  275 


LK.UIK.MIAM   t*.    NICUOLSOJT. — 1827. 


13.  St evens  vs  Richardson,  6  Harr.  Sf  Johns.  156.  Jarrett's 
Lessee  vs  Cooley,  Ib.  258.  Wildman  vs  Wildman,  9  Fes. 
f  76.  Mitford  vs  Mitford,  Ib.  87.  Richards  vs  Chambers, 
10  Fes.  587.  Murray  vs  Ld.  Elibank,  13  Ves.  5.  Duns- 
comb  vs  Dunscomb,  1  Johns.  Ch.  Rep.  510.  Genet  vs  Tall- 
madge,  Ib.  563.  Heygate  vs  Jinneslcy,  3  Bro.  Ch.  Rep.  362, 
(note  a.)  Blount  vs  Bestland,  5  Ves.  515,  (note  1.)  <flno~ 
nymous,  3  Jltk.  726,  case  276.  Bond  vs  Simmons,  Ib.  21. 
Pearson  vs  Brereton,  Ib.  72.  1  Madd.  Ch.  269, 270, 380,  388. 
Davidson  vs  Clay  land,  1  Harr.  fy  Johns.  546. 

R.  Johnson,  in  reply,  referred  to  the  act  of  1802,  ch.  94,  s. 
6.  Heygate  vs  Jlnneslcy,  3  Bro.  Ch.  Rep.  362,  (notes.) 
Murray  vs  Ld.  Elibank,  13  Ves.  5. 

Curia  adv.  vulf. 

DORSEY,  J.  at  this  term  delivered  the  opinion  of  the  Court 
In  May  1816,  Thomas  and  Joseph  Williams,  Gassaway 
Knighton,  and  Sarah  his  wife,  and  Edward  Leadenham,ani\ 
Mary  his  wife,  exhibited  their  bill  in  chancery  against  Eliza- 
beth Jinn  Ball,  setting  forth  that  a  certain  Joseph  Williams 
died  intestate  and  seized  of  about  175  acres  of  land  in  Jlnne- 
Jlrundel  county,  leaving  the  said  complainants,  Thomas,  Jo- 
seph, Mary  and  Sarah,  and  a  certain  Jinn  Bird,  the  wife  of 
John  Bird,  his  children,  and  a  grandson  named  John  Ball, 
the  son  of  a  deceased  daughter  Elizabeth,  his  heirs,  to  whom 
the  said  land  descended.  That  John  Bird  died  intestate  and 
without  issue;  and  that  John  Ball  had  also  departed  this  life, 
leaving  a  child  named  Elizabeth  Jinn  Ball,  a  minor,  to  whom 
his  interest  in  said  land  descended.  The  bill  further  stated, 
that  the  land  could  not  be  divided  beneficially  to  all  concerned, 
and  prayed  for  a  decree  for  sale  or  division.  In  August  1816 
the  answer  of  the  minor  was  filed,  assenting  to  a  sale  of  the 
land,  and  on  thfe  31st  of  the  same  month,  a  decree  for  the  sale 
passed,  in  the  usual  form,  on  a  credit  of  twelve  months,  the 
purchaser  to  give  bond  with  security,  bearing  interest.  In  Ja- 
nuary 1817,  the  trustee  reported  the  sale  of  the  land  in  the 
preceding  November  for  $7350,  to  Thomas  Williams,  who 
had  given  bond  for  the  purchase  money  agreeably  to  the  de- 
cree. Which  report  was  fmajly  ratified  by  the  chancellor  i» 


276     «ASES  IN  t HE  eouirr  »F  APPEALS 

LEADKXHAM  v.  NTCHOLSOW — 1827 

IVIarch  1817.  In  September  1818,  the  auditor  stated  the  ac- 
count, &c.  and  distributed  the  proceeds  of  sale,  after  deducting 
the  expenses,  into  five  shares  of  $1440  91  each,  to  Thomas 
Williams,  Joseph  Williams,  Knighton  and  wife,  Leadenham 
and  wife,  and  Elizabeth  Jlnne  Bail;  on  which  account  no  or- 
der appears  to  have  been  taken  by  the  chancellor.  In  November 
1820,  the  auditor  stated  a  second  account,  distributing  $3000 
received  of  the  proceeds  of  sale,  among  the  same  distributees 
named  in  his  first  account,  which  was  paid  to  them  accordingly. 
On  the  first  of  June  1824,  the  auditor  stated  a  third  account, 
distributing  in  like  manner  $5185  78,  except  that  of  Leaden- 
ham  and  wife's  proportion  $120  was  allowed  to  John  Leeds 
Kerr,  on  an  order  drawn  by  Edward  Leadenham  on  the  27th 
of  January  1820.  Which  third  account  was,  in  common  form 
ratified  by  the  chancellor  on  the  7th  of  June  1824.  and  on  the 
same  day  he  rescinded  the  order  of  ratification  as  far  as  respects 
the  distributive  share  of  Leadenham  and  wife.  On  the  16th 
of  the  ensuing  July,  Noah  Leadenham  filed  his  petition  in  the 
court  of  chancery,  setting  forth  all  the  proceedings  in  that 
court  under  the  bill  filed  as  aforementioned,  and  that  judgments 
were  recovered  by  the  trustee  against  the  principal  and  his  se- 
curities, on  the  bond  given  for  the  purchase  money  of  the  land 
in  1819,  and  that  previously  thereto  Thomas  Williams,  the 
purchaser,  transferred  to  Joseph  and  James  Nicholson,  his  se- 
curities, all  his  right  of  purchase  in  said  land,  and  released  to 
them  his  right  to  one-fifth  part  of  the  said  purchase  money. 
That  Joseph  and  James  Nicholson,  to  secure  the  payment  of 
said  purchase  money  to  the  trustee,  assigned  to  him  the  single 
bill  of  a  certain  Walter  Claggett,  for  $6453,  on  which  the 
trustee  recovered  judgment  in  1822,  and  upon  a  fieri  facias 
issued  thereon,  received  $5185  78,  the  sum  of  money  on  the 
distribution  of  which  the  present  controversy  arises.  The  pe- 
tition also  stating  and  establishing  by  accompanying  deposit!* 
ons  that  Mary  Leadenham  died  in  February  1821,  and  Ed- 
ward Leadenham,\\er  husband,  in  August  following;  the  pray- 
er of  the  petition  was  that  the  chancellor  would  pass  an  order 
directing  the  trustee  to  pay  to  the  petitioner,  as  executor  of 
Edward  Leadenham,  the  amount  to  which  Edward  Leaden*- 
ham  was  entitled  j  and  for  general  relief. 


6F  MARYLAND.  277 


LKAIIEKIIAM  v.   NICHOLSON. — 1827. 


The  principal  question  in  this  cause,  and  that  from  the  chan- 
cellor's decision  of  which  the  present  appeal  hath  originated, 
is  simply  this — Does  Alary  Leadenham's  share  of  the  afore- 
said §5185  78  vest  in  the  executor  of  her  husband,  or  survive 
to  her  representatives?  In  the  solution  of  this  question,  the  first 
point  to  be  examined  is,  what  was  the  nature  of  Mary  Lea- 
denham's interest  in  the  fund  in  controversy,  at  the  time  of 
her  death?  Was  it  realty  or  was  it  personalty?  If  the  former, 
then  Edward  Leadenham,  never  having  had  issue  by  his  wife, 
had  not  even  the  shadow  of  a  claim,  and  the  fund  descended 
to  the  heirs  at  law  of  the  wife.  This  was  the  opinion  of  the 
chancellor.  In  support  of  which  the  counsel  for  the  appellees 
have  referred  to  many  cases,  arising  under  a  well  established 
rule  in  equity,  that  money  directed  to  be  laid  out  in  land  will, 
before  investment,  be  considered  as  land;  and  land,  directed  to 
be  sold  and  converted  into  money,  will  before  a  sale,  be  consi- 
dered as  money,  and  pass  as  such. 

The  applicability  of  the  authorities  cited  has  not  been  disco- 
vered; this  case  not  being  embraced  by  either  brarch  of  the 
yule.  It  is  not  money,  ordered  to  be  invested  in  land,  but  mo- 
ney arising  from  land  sold;  and  is,  therefore,  free  from  the  ope- 
ration of  the  first  part  of  the  rule.  And  if,  contrary  to  the 
fact,  it  be  conceded  to  be  land  to  be  converted  into  money,  the 
latter  part  of  the  rule  repudiates  the  idea  of  its  being  viewed 
as  land,  and  stamps  upon  it  a  personal  character.  The  case  of 
Yoke  vs  Harriet's  JldrrCr.  1  JBinney,  358,  referred  to  in  the, 
chancellor's  decretal  order,  is  a  very  strong  adjudication  to 
prove  that  Mary  Leadenham? s  interest  was  merely  personal. 
But  this  principle  has  been  settled  by  this  court  in  the  case  of 
The  State  use  of  Rogers  vs  Krebs,  el  al.  Garnishees  of 
Home,  5  Plarr.  4*  Johns.  31,  in  which  it  became  necessary  t* 
decide  at  what  time  a  change  took  place  in  the  nature  of  the 
real  estate  of  a  feme  covert  sold  by  commissioners  appointed 
under  the  act  to  direct  descents.  And  after  great  deliberation  it 
was  adjudged,  "that  the  mutation  of  her  estate  from  real  to 
personal  may  be  determined  to  be  complete,  when  the  com- 
missioners' sale  is  ratified  by  the  court,  and  the  purchaser  has 
complied  with  the  terms  of  it,  by  paying  the  money,  if  the  sale 
»  for  cash.,  or  by  giving  bonds  to  the  representatives,  if  the  sale 


278  CASES  IX  THE  COURT  OF  APPEALS 

LEADENHAM  v.  NICHOLSON.  —  1827". 

is  on  a  credit."  It  is  true  this  was  a  decision  at  law;  but  it 
violates  no  rule  or  principle  of  equity;  nor  does  any  sound  rea- 
son appear  why,  in  cases  like  the  present  the  same  rule  should 
not  prevail  in  equity,  which  exists  at  law.  We  therefore  disa- 
gree with  the  chancellor  in  considering  Mary  Leaden/tarn's 
share  "as  her  land,"  descending  "to  her  heirs."  Nor  can  we 
admit  that  the  determination  of  this  cause  must  depend  upon 
the  effect  which  the  proceedings  of  the  court  of  chancery  may 
have  had  in  changing  the  nature  of  the  estate  of  Mary.  The 
appellant  has  no  claim  to  it,  whether  it  be  considered  as  real  or 
as  personal  property. 

The  interest  of  Mary,  at  the  time  of  her  death,  is  viewed 
by  this  court  in  the  nature  of  an  equitable  chose  in  action,  for 
the  payment  of  which  to  husband  and  wife,  or  either  of  them, 
no  order  was  passed  by  the  chancellor;  for  the  recovery  of 
which  nothing  has  been  done  to  entitle  the  representatives  of 
the  husband  to  claim  under  the  act  of  assembly,  or  otherwise; 
it  therefore  survives  to  the  personal  representatives  of  Mary 
Leadenham,  and  not  to  her  heirs  at  law,  as  decreed  by  the 
chancellor. 

To  show  the  extent  to  which  the  rights  of  the  husband  are 
carried  in  a  court  of  equity,  the  note  to  the  case  of  Hey gate 
vs  ^nnesley,  3  Bro.  Ch.  Rep.  362,  has  been  referred  to,  which 
note  professing  to  give  the  decision  in  Forbes  vs  Phipps,  1 
Eden,  502,  states  it  to  have  been  there  decided,  that  "where  a 
feme  covert,  being  entitled  to  a  share  of  the  residue  of  a  testa- 
tor's estate,  upon  a  bill  filed  by  another  residuary  legatee,  to 
which  she  and  her  husband  were  defendants,  a  decree  had  been 
made  for  a  sale  of  the  estate  and  payment,  Lord  Northington, 
held,  that  the  share  vested  absolutely  in  the  husband  by  the  de- 
cree, and  that  the  wife  surviving  was  not  entitled."  How 
the  learned  annotator,  in  extracting  the  principle  of  a  deci- 
sion reported  by  himself,  could  have  so  egregiously  erred  in 
his  statement  both  of  law  and  fact,  it  is  difficult  to  conceive. 
The  case  of  Forbes  vs  Phipps  was  not,  (as  it  would  appear 
to  be  by  the  above  mentioned  note,)  a  contest  between  the  sur- 
viving wife  and  the  representatives  of  the  husband,  but  be- 
tween the  surviving  husband  and  the  representatives  of  the 
wife;  and  the  decree  was,  according  to  all  the  authorities  both 


OF  MARYLAND  27*-» 


LKADEXHAM  v.  NICHOLSON. — 1827. 


at  law  and  in  equity,  that  the  surviving  husband  was  absolutely 
entitled. 

The  provisions  of  the  act  of  assembly  1798,  ch.  101,  sub, 
ch.  5,  s.  8,  although  introduced  into  the  argument,  can  be  of  no 
avail  to  the  appellant,  as  Edward  Leadenham,  after  his  wife's 
death,  neither  reduced  her  chose  in  action  into  possession,  nor 
obtained  judgment  thereon.  Independently  of  this  act  of  as- 
sembly the  executor  of  the  surviving  husband  has  not  a  sha- 
dow of  claim.  'Tis  true  a  decree  has  passed,  in  the  lifetime 
of  the  wife,  for  the  sale  of  her  land,  in  a  cause  to  which  she 
and  her  husband  were  parties.  But  that  proceeding  directs  a 
sale  of  the  property,  and  the  proceeds  to  be  brought  into  court 
It  professes  not  to  ascertain  the  rights  of  the  respective  claim- 
ants; it  makes  no  distribution;  it  awards  no  payment,  either 
immediately  or  contingently,  to  husband  and  wife,  or  either  of 
them;  no  such  decree  has  passed  as  is  equivalent  to  a  judgment 
at  law,  which  would  vest  the  chose  of  the  wife  absolutely  in 
the  surviving  husband.  If  the  decree  had  directed  the  pro- 
ceeds of  sale  to  be  paid  to  the  husband  and  wife,  or  the  hus- 
band alone;  or  if  the  chancellor  had  made  the  usual  order  of 
ratification  of  the  auditor's  statement,  directing  the  trustee  to 
pay  over  accordingly,  then  would  the  representatives  of  the 
husband  have  been  clearly  entitled.  But  this  has  not  beea 
done. 

Several  questions  ot  law,  as  to  the  form  of  proceeding,  the 
regularity  of  the  appeal,  and  the  admissibility  of  testimony, 
were  raised  by  the  appellees,  which  our  opinion  on  the  main 
question  renders  it  unnecessary  to  decide. 

As  to  that  part  of  the  litigated  fund  which  was  assigned  to 
John  Leeds  Kerr,  the  allowance  of  which  by  the  auditor  was 
rejected  by  the  chancellor,  this  court  can  make  no  decree,  Kerr 
being  no  party  before  us.  Nor  are  we  authorised  to  reverse 
the  chancellor's  decree  as  to  the  residue  of  that  fund,  the  per- 
sonal representatives  of  Mary  Leadenham  not  appearing  as 
appellantSj  and  the  executor  of  Edward  Leadenham  having 
no  interest  in  the  subject  matter.  We  can  therefore  only  do 
what  the  chancellor,  according  to  our  view  of  the  case,  ought 
to  have  done,  with  respect  to  the  appellant's  petition — decree 
its  dismissal,  with  costs.  Decreed,  that  the  appeal  be  dismiss- 


289  GASES  Itf  THE  COURT  0*  APPEALS 

^  ; 1        .       .      _  .1        I     ...r.f 

BCCHAXAIT  v    DESHOS. — 1827. 

«d,  and  that  the  petition  of  the  appellant  in  the  court  of  chan- 
try be  also  dismissed,  with  costs,  &c. 

APPEAL  DISMISSED,  &C. 


BUCHANAN  vs.  DESHON,  et  at. — June,  1827. 

An  agreement  between  a  man  and  his  intended  wife,  in  consideration  of 
marriage,  (which  had  none  of  the  legal  attributes  of  a  marriage  settle- 
ment, so  as  to  overreach  the  claims  of  creditors,)  to  secure  to  her,  for 
her  own  use,  an  annuity  for  life,  may,  after  the  marriage  and  the  hus- 
band's death,  be  enforcer'  by  the  wife  against  his  representatives;  and 
his  estate,  being  insufficient  to  pay  his  debts,  she  will  be  treated  as  a  ge- 
neral creditor  to  the  extent  of  her  claims  under  the  agreement,  and  her 
dividend  so  invested,  as  to  produce  as  much  of  the  annuity  as  practica- 
ble. But  in  this  case,  the  widow  having  only  claimed  payment  of  her  an- 
nuity from  the  time  of  the  death  of  her  husband,  her  dividend  was  esti- 
mated upon  its  arrearages,  from  that  time  to  the  sale  of  his  estate,  and 
the  interest  which  had  accrued  thereon. 

By  the  same  agreement,  the  children  of  the  marriage,  succeeding  to  the 
rights  of  the  wife,  the  dividend  of  the  husband's  estate,  invested  for  the 
benefit  of  the  mother,  will  after  her  death,  be  divided  equally  among  the 
children  and  their  proper  representatives. 

An  alien  may  purchase  lands  and  hold  them  against  every  one,  except  the 
state,  until  office  found,  or  until  the  government  shall  exercise  its  authori- 
ty over  them;  but  by  the  common  law  a  feme  covert,  being  an  alien,  is  not 
entitled  to  be  endowed,  nor  to  inherit.  . 

The  act  of  1813,  ch.  100,  does  not  authorise  the  endowment  of  a  female 
alien,  who  during  her  coverture,  never  resided  in  the  United  Stales. 

APPEAL  from  the  Court  ot  Chancery.  The  bill  in  this  case 
was  filed  on  the  1st  of  July  1818,  by  the  appellees  against  Esther 
Buchanan,  and  others,  as  heirs  at  law  of  William  Buchanan^ 
deceased,  for  a  sale  of  his  real  estate  for  the  payment  of  debts 
due  by  him  to  the  appellees.  The  answers  admit  the  deficien- 
cy of  personal  assets,  and  the  defendants  assent  to  the  sale  of 
the  real  estate.  They  also  state  that  they  understand  their 
mother,  (who  is  the  present  appellant,)  was  a  creditor  also  of 
the  deceased  under  a  marriage  contract  between  her  and  the  de- 
ceased, and  refer  to  the  same  as  it  should  be  exhibited  by  their 
aaid  mother.  A  decree  passed  as  pra\  ed  for,  and  the  appellant, 
under  the  usual  order  in  such  cases  for  creditors  to  exhibit  their 
claims,  filed  two  petitions  on  the  9th  of  May  1S20.  The  first 
praying  to  be  allowed  a  dower  interest  in  the  proceeds  of  the 
property  to  be  sold;  and  the  second  exhibiting  the  marriage 


OF  MARYLAND.  281 


BCCHASAW  i).   DESHOX  — 1827. 


contract  between  herself  and  the  deceased,  which  is  referred  to 
by  the  answers,  and  praying  to  be  allowed  out  of  the  said  pro- 
ceeds the  amount  due  to  her  by  the  terms  of  the  said  contract, 
from  the  death  of  her  husband. 

The  marriage  contract  here  referred  to,  bears  date  on  the  7th 
Prairial  of  the  12th  year  of  the  French  Republic,  (27th  of  May 
1803,)  and  is  stated  to  have  been  entered  into  "before  certain 
Notaries  Public  of  the  Isle  of  France,  between  IVilliam  Bu- 
chanan, consul  of  the  United  States  i>£*/2merica  for  the  Islands 
of  France  and  Bourbon,  residing  in  the  N.  W.  port  of  the 
Island  of  France,  being  of  age,  a  native  of  Baltimore,  state 
of  Maryland,  United  States  of  America,  stipulating  for  him- 
self, and  in  his  own  name,  of  the  one  part,  and  Joseph  Mer- 
ven, residing  in  this  place,"  &c.  "stipulating  for  Miss  Maria 
JEmelia  Louisa  Merven,  a  native  of  this  colony,  now  under 
age,  his  daughter;  and  Miss  Merven,  residing  with  her  father, 
stipulating  likewise  for  herself  and  in  her  own  name,  of  the 
other  part.  Who  in  presence  of  their  relations  and  friends 
hereafter  named,  to  wit,"  &c.  "have  agreed  as  follows  upon  the 
civil  conditions  of  the  marriage  which  will  immediately  take 
place  between  Mr.  Buchanan  and  Miss  Merven."  The  only 
articles  in  the  contract  which  seem  to  be  necessary  to  be  in- 
serted are — "Article  8.  The  future  husband  has  endowed,  and 
endows  his  intended  wife  with  an  annuity  of  two  thousand  ef- 
fective hard  Spanish  Piasters,  by  the  name  of  a  settlement, 
(douaire prefix,  or  prefixed  dower,)  and  exempt  from  all  de- 
duction, which  she  shall  enjoy  immediately  upon  the  opening 
of  said  dower;  the  principal  (fonds,  or  funds,)  of  which 
dower,  at  the  rate  of  five  per  cent,  shall  go  to  the  children 
which  shall  spring  from  the  marriage  of  the  future  husband." 
*  Article  9.  The  future  husband  makes  by  these  presents  a  do- 
nation, in  the  best  form  that  a  donation  can  be  rendered  valid 
or  take  place,  to  his  intended  wife,  who  assents  thereto  under 
the  authorization  of  Mr.  Merven,  her  father,  of  all  which  the 
French  or  foreign  laws  permit  him  to  dispose  of,  in  any  pro- 
perty which  the  said  future  husband  may  possess  at  the  day  of 
his  death,  in  France  and  in  foreign  countries,  whether  there 
be  then  children  in  existence  or  to  be  born  of  the  intended  mar- 
riage or  not.  Should  any  children,  living  at  the  death  of  the 
VOL.  i,  36 


382  CASES  TN  THE  COURT  OF  APPEALS 

BCOHANAN  v.  DESHON. — 1827. 

future  husband,  afterwards  die  before  or  after  coming  of 
and  before  the  intended  wife,  without  having  disposed  of  their 
property,  and  without  legitimate  issue,  in  that  ease  the  intended 
wife  shall  take  the  amount  of  the  donation  as  if  there  had  been 
no  children."  -* Article  10.  The  future  husband  reserves  to 
himself  the  power  of  disposing  of  one-fourth  of  his  property." 
[This  translation  of  the  marriage  contract  was  made  and  agreed 
to  at  theargument  in  this  court,  on  the  appeal.]  The  property 
was  (afterwards)  sold  by  the  trustee  appointed  by  the  chancellor 
to  make  sale  thereof,  for  $14,230,  and  the  proceeds  brought  in- 
to the  court  of  chancery  for  distribution.  The  auditor,  under 
the  orders  of  the  chancellor,  stated  several  accounts,  which 
\vere  submitted,  &c.  Other  facts  established  in  the  cause,  will 
appear  in  the  opinion  delivered  by 

BLAND,  Chancellor,  (May  4th,  1825. )•  The  claim  of  Maria 
E.  L.  Buchanan,  designated  in  the  auditor's  report  of  the 
30th  of  November  1820,  as  claim  No.  6,  has  been  presented 
In  various  points  of  view,  and  in  every  shape  is  met  by  strong 
objections.  She  is  an  alien,  who  never  was  in  this  country  un- 
til after  the  death  of  her 'husband;  and  therefore,  can  take  no 
benefit  under  the  act  of  1813,  ch.  100.  Consequently,  she  is 
not  dowable,  according  to  our  law,  of  any  real  estate  lying  in, 
this  state,  of  which  her  husband  was  seized  at  any  time  during 
the  coverture.  As  an  alien,  she  might  take  and  hold  real  estate 
lying  in  this  state,  against  all  but  the  state,  under  the  marriage 
contract.  But  that  contract  was,  in  no  respect,  made  and  ex- 
ecuted in  such  manner  and  form  as  the  laws  of  this  state  require 
conveyances  of  real  estate  in  Maryland  to  be  made  and  ex- 
ecuted; and,  besides,  it  has  no  reference  whatever  to  the  lands 
mentioned  in  this  case,  or  indeed  to  any  real  property  in  this 
state. 

A  court  of  equity  will  decree  the  execution  of  a  marriage 
contract,  by  which  the  husband  binds  himself  to  settle  upon  his 
intended  wife  all  the  personal  property  which  he  should  at  any 
time  during  coverture  be  possessed  of.  Thus  making  the  cove- 
nant attach  upon  each  article,  that  should,  from  time  to  time, 
come  into  the  possession  of  the  husband.  But  in  the  eighth 
article  of  the  contract,  now  under  consideration,  by  which 


OF  MARYLAND,  283 


BUCHANAN  v.  DESBON. — 1827. 


alone,  if  at  all,  this  claim  can  be  sustained,  there  is  no  general 
or  specific  designation  of  any  property  whatever,  either  real  or 
personal. 

The  translation  of  the  marriage  contract  is,  in  many  respectsy 
rery  defective.  It  appears,  however,  to  have  been  made  ac- 
cording to  the  legal  forms  usual  in  those  countries  governed 
chiefly  by  the  civil  law;  and  in  reference  to  that  code,  as  modi- 
fied by  the  customs  of  Paris,  by  which,  it  is  believed,  the  Isle 
of  France,  where  the  parties  then  lived,  as  well  as  all  the 
other  French  colonies,  were  governed.  The  first  part  of  the 
eighth  article  of  this  contract,  on  which  this  claim  is  said  to  be 
founded,  speaks  of  a  settlement  to  be  made  on  the  intended 
wife,  to  take  effect  on  the  marriage,  of  an  income  or  jointure, 
(for  dower,  in  the  sense  of  our  law  it  cannot  be,)  to  be  secured 
to  her  separate  use,  independently  of  her  husband;  in  such  man- 
ner, as  was,  no  doubt,  well  known  to  the  law  of  the  place  where 
the  contract  was  made  And,  it  then  closes  with  declaring, 
that  the  capital  of  that  income  estimated  at  five  per  cent,  should 
descend  and  pass  to  the  issue  of  that  wife  by  that  marriage.  It 
is  a  covenant,  on  the  part  of  the  husband,  to  settle  upon  his  in- 
tended wife  a  jointure  of  a  specified  value,  and  of  a  particular 
character  known  to  the  laws  of  the  Isle  of  France;  ^doitaire 
prefix,"  an  endowment  in  frank  bank,  or  a  peculiar  species  of 
marriage  settlement,  by  which  no  particular  kind  or  parcel 
of  property  whatever  was  specially  designated  and  described; 
and,  therefore,  it  never  could  have  been  considered,  according 
to  our  law,  as  giving  to  the  wife  or  children  a  lien  or  claim  of 
any  kind  upon  any  property  of  which  the  husband  ever  was, 
at  any  time,  seized  or  possessed. 

But  marriage,  even  at  law,  will  not  extinguish  any  prior  con- 
tract between  the  parties  upon  which  a  right  of  action  cannot 
accrue  during  the  coverture.  As,  where  the  intended  husband 
covenanted  to  pay  a  certain  sum  of  money  to  the  intended  wife> 
if  she  should  survive  him,  or  within  a  given  time  after  his 
death;  it  was  held,  that  the  covenant  was  valid,  and  that  the 
widow  might  recover  the  sum  stipulated  to  be  paid,  from  the 
executor  of  her  deceased  husband. 

But  the  contract,  in  this  case,  does  not  merely  stipulate  for 
the  payment  of  money  upon  the  happening  of  a  certain  COB- 


£84  CASES  IN  THE  COURT  OF  APPEALS 

BtrcHAJTAH  v.  DESHOS. — 1827. 

tingency,  and  nothing  more.  It  is  not  a  mere  obligation  for 
the  payment  of  money  by  the  husband  to  the  wife  in  the  event 
of  her  surviving  him;  but  it  is  a  marriage  settlement,  in  which 
an  income  or  jointure  of  a  certain  value  is  to  be  secured  to  the 
wife  during  her  life,  and  after  her  death  the  capital  of  that  in- 
come, at  five  per  cent,  is  to  go  to  her  children  by  that  mar- 
riage. The  eighth  article  contemplates,  as  a  part  of  the  gene- 
ral settlement,  the  creation  of  one  entire  estate,  out  of  funds, 
real  or  personal,  to  be  provided  by  the  husband,  the  income, 
or  present  beneficial  interest  in  which,  was  to  be  vested  in  the 
wife  for  life,  with  remainder  over  to  her  children.  There  is 
nothing  in  the  general  sense,  object,  and  scope  of  the  article, 
which  can  warrant  a  court  of  justice  in  treating  it  as  a  mere 
obligation  to  pay  a  debt,  or  sum  of  money  in  gross,  or  in  con- 
sidering the  widow,  under  it,  as  a  mere  creditor  of  her  late 
husband.  In  short,  a  covenant,  in  contemplation  of  marriage, 
to  create  an  estate  for  the  benefit  of  a  wife  and  children,  can- 
not, by  an  undue  degree  of  liberality,  be  made  to  mean  an  ob^ 
ligation  to  pay  A  debt,  or  sum  of  money  to  the  wife,  to  the 
prejudice  of  real  bona  fide  creditors.  This  claim  of  Maria 
E.  L.  Buchanan  must,  therefore,  be  rejected. 

These  principles  being  thus  settled  and  determined,  the  case 
is  hereby  again  referred  to  the  auditor,  with  directions  to  state 
san  account  accordingly,  and  to  report  the  same  to  the  chancel- 
lor preparatory  to  a  final  order  for  a  distribution  of  the  funds 
in  the  hands  of  the  trustee.  From  this  decretal  order  Mrs. 
Buchanan  appealed  to  this  Court 

The  case  was  argued  at  the  last  June  term,  before  BUCHANAN, 
€h.  J.  and  STEPHEN,  ARCHER,  and  DORSET,  J. 

R.  Johnson,  for  the  Appellant,  contended, 

1.  That  the  appellant  was  entitled  to  dower  at  common  law, 
independently  of  the  act  of  1813,  cA.  100. 

2.  If  she  was  not  so  entitled,  she  is  entitled  to  dower  under 
the  act  of  1813,  ch.  100. 

3.  If  she  is  not  entitled  under  that  act,  then  she  is  entitled 
tinder  the  marriage  contract. 

4  She  is  entitled  to  come  in  as  a  preferred  creditor  under 
lliaL  contract. 


OF  MARYLAND.  &85 


BUCHAVAS  v.  DESHON. — 1827. 


5.   She  is  entitled  to  claim  her  dower,  and  also  a  right  to 
claim  as  creditor. 

1.  Is  she  entitled  at  common  law?     This  is  not  a  question 
between  the  state  and  Mrs.  Buchanan,  she  being  an  alien.  The 
land  has  been  sold,  and  the  question  is   between  her  and  the 
creditors.     It  is  laid  down  as  a  general  rule,  that  an  alien  wife 
cannot  be  endowed.     That  is,  she  cannot  claim  agninst  the  state; 
not  that  she  cannot  claim  against  an  individual.     Her  claim  is 
good  against  all  but  the  state.     There  had  been  no  decision  that 
an  alien  feme  covert  was  not  entitled  to  dower,  and  the  object 
of  the  act  of  1813,  ch.  100,  was  to  give  to  her  the  state's  in- 
terest.    An  alien  may  acquire  property   by  purchase  for  his 
own  benefit;  and  no  person  can  contest  his  right,  but  the  state 
may.      1  Bac.  Jib,  tit.  */2lien,  8.     M'Creery's  Lessee  vs  Mlen- 
der,  4  Harr.  4'  MlHen.  409.     M'Creery's  Lessee  vs  Wilson, 
Ib.  412.    Co.  Litt.  2,  b,  (note.  3.J  Page's  case,  5  Coke,  52,  b. 
Mooers  vs  White,  6  Johns.  Ch.  Rep.  360.      Orr  vs  Hodgson, 
4  Wheaton,453.     2  Blk.  Com.  132, -241. 

2.  If  she  is  not  entitled  at  common  law,  she  is  entitled  un- 
der the  act  of  1813,  ch.  100.     This  act  was  in  force  at  the  time 
of  the  death  of  the  busband,  then  at  the  Isle  of  France.     On 
his  death  his  widow  came  to  this  country,  and  has  resided  ever 
since.     It  is  admitted  she  was  never  here  during  the  life  of  her 
husband.     Her  husband  was  a  public  agent  of  the  government 
of  the  United  States;  and  in  construction  of  law  his  residence 
continued  to  be  within  the  United  States.     An  enlarged  con-> 
struction  should  be  given  to  the  act  in  favour  ot   the   widow. 
She  has  resided  here  since  her  marriage,  although  not  during 
her  marriage.     This  right  of  the  widow  is  also  secured  to  her 
by  the  act  of  March  1780,  ch.  8,  s.  2,  and  the  seventh  article 
of  the  convention  between  the  United  States  and  France  of 
the  30th  September  1800. 

3.  She  is  entitled  to  dower  under  the  marriage  contract. 
For  this  purpose  the  8th  and  9th  articles  only  of  that  contract 
are  important.  A  marriage  settlement  is  to  be  construed  li- 
berally. If  in  a  devise  it  would  apply  to  real  as  well  as  to 
personal  estate,  then  under  the  ninth  article  it  vested,  one  third 
in  her  of  his  real  estate.  She  is  to  be  considered  as  a  purchas- 
er. 2  Blk.  Com.  292,  293.  Higgenson  vs  Kelly,  1  Ball  £ 
Beatty,252.  Parkes  vs  White,  \\  Ves.  235. 


CASES  IN  THE  COURT  OF  APPEALS 


BUCHANAN  v.  DESHON.—  1827. 


4.  She  is  entitled  to  come  in  as  a  preferred  creditor  under 
the  marriage  contract.     It  was  not  void  as  to  creditors;  be- 
cause there  were  no  creditors  at  the  date  of  the  contract.     But 
whether  there  was  or  was  not  a  creditor  at  that  time  or  since, 
a  marriage  contract  is  valid  against  prior  as  well  as  subsequent 
creditors.     Nairn  vs  Prowse,  6  Ves.  759.     Reade  vs  Living- 
ston, 3  Johns.  Ch.  Rep.  494.     By  the  8th  article  of  the  con- 
tract she  is  to  be  considered  as  a  creditor.     The  husband  there- 
by covenanted  that  on  his  death  his  wife  should  receive  an  an- 
nuity of  $2000.      5  Bac.  *ftb.  tit.  Obligations,  155.     She.  is 
entitled  to  come  in  as  a  preferred  creditor  to  the  amount  of  her 
annuity.     The  husband  having  set  no  estate  apart  to  pay  her, 
makes  no  difference.     He  left  no  estate  but  the  land  out  of 
which  the  fund  in  question  has  arisen;  and  it  will  be  presumed 
that  she  should  be  paid  out  of  it. 

5.  The  allowance  of  the  annuity  is  not  stated  to  be  in  lieu 
of  her  dower;  and  the  9th  article  shows  that  it  was  not  so  in- 
tended.    Birmingham  vs  Kirwan,  2  Sch.  Sf  Lef.  451.     Fos- 
ter vs  Cook,  3  Bro.  Ch.  Rep.  347. 

Marriott,  for  the  Appellees.  The  claim  of  the  appellant  is 
to  be  considered  in  a  two-fold  view.  1.  As  to  her  dower  at 
common  law,  or  under  the  act  of  1813,  ch.  100.  2.  As  to  her 
claim  under  the  marriage  contract.' 

1.  It  is  well  settled  that  an  alien  is  not  entitled  to  dower  at 
common  law.  Co.  Lltt.  31,  (note  9.J  1  Bac.  Jib.  tit.  Jllien, 
(C)  136  Kelly  v.s  Harrison,  2  Johns.  Cas.  29.  The  appel- 
lant never  had  a  capacity  to  take.  She  never  had  any  vested 
right.  Vat.  L.  N.  102.  The  act  of  1813,  ch.  100,  shows  that 
there  could  be  no  claim  to  dower  at  common  law,  or  that  act 
would  not  have  passed.  That  act  gives  dower  only  to  married 
women  being  aliens,  who  may  have  been  married  in  this  coun- 
try, and  who  reside  here  with  their  husbands,  or  at  least  they 
must  be  residents  here  at  the  time  of  the  deaths  of  their  hus- 
bands. The  wife  must  reside  here  after  her  marriage — meaning 
she  must  reside  here  after  and  during  her  marriage  in  the  life- 
time of  her  husband,  and  not  that  she  might  come  here  and  re- 
side after  the  dea^h  of  her  husband.  If  that  were  the  case  she 
plight,  after  the  death  of  her  husband,  come  here  and  reside 


OF  MARYLAND.  287 


BUCHANAN  v.   DESHON. — 1827. 


one  week,  receive  her  dower,  and  return  to  her  own  country. 
This  was  not  the  intention  of  the  act  of  assembly,  and  it  is  not 
within  its  sound  construction.  The  act  of  March  1780,  ch.  8, 
is  not  applicable  to  this  case.  That  act  was  predicated  upon 
the  then  existing  treaty  between  this  country  and  France  in 
1778,  which  treaty  has  been  since  annulled  by  an  act  of  con- 
gress in  1799.  Congress  alone  could,  since  the  adoption  of  the 
constitution, pass  acts  of  naturalization;  and  they  legislated  up- 
on this  subject  as  early  as  1790.  The  convention  between  the 
United  States  and  France  of  1800,  expired  in  1808,  before 
any  vested  right  accrued  to  the  appellant,  even  if  she  could 
have  claimed  under  it  were  it  now  in  existence. 

2.  The  contract  relied  on  as  a  marriage  settlement  is  not  re- 
gularly that  which  it  is  stated  to  be.  It  is  a  mere  contract. 
Rundle  vs  Murgatroyd-,4  Dall.  Rep,  305.  If  it  is  a  marriage 
settlement  it  has  not  been  legally  executed  agreeably  to  OUF 
laws,  so  as  to  operate  upon  the  husband's  real  estate  here.  The 
widow,  therefore,  under  that  contract,  is  not  entitled  as  a  com- 
mon creditor;  but  if  she  is  to  be  considered  as  a  creditor  at  all, 
she  cannot  be  a  preferred  creditor;  she  may  come  in  after  all 
the  debts  are  paid.  Free,  in  Chan.  539.  Underwood  vs  HUh- 
cox,  1  Ves.  279.  •Anonymous,  2  Chan.  Cas.  17.  Emery  vs 
Wase,  5  Ves.  846.  The  contract  is  unreasonable,  and  ought 
not  to  be  enforced.  2  Pow.  on  Cont.  221,  222. 

Mayer,  on  the  same  side.  This  is  an  unreasonable  settle- 
ment, and  should  not  be  enforced  against  creditors.  It  is  a 
vague  instrument,  dealing  in  generals,  and  is  not  formally  exe- 
cuted agreeably  to  our  recording  laws,  so  as  to  afiect_real  estate. 
It  is  not  tantamount  to  a  grant  of  an  interest.  The  8th  article 
of  the  marriage  contract  gives  a  bounty  to  the  wife  out  of  the 
-husband's  general  estate,  in  preference  to  his  disposing  power. 
She  does  not  take  as  a  purchaser,  but  she  takes  it  as  a  gilt.  The 
fund  produced  by  the  sale  of  the  real  estate  ought  not  to  be  ap- 
propriated to  pay  this  bounty  in  exclusion  of  the  creditors. 
Real  estate  in  this  state  is  similar  to  personal  in  payment  of 
debts.  This  contract  is  not  better  than  a  voluntary  settlement, 
which  a  court  of  equity  will  set  aside  when  to  the  prejudice  of 
creditors.  To  make  it  a  marriage  settlement  an  estate  must  be 


288  CASES  IN  THE  COURT  OF  APPEALS 

BUCHANAN  v.  DESHON. — 1827. 

set  apart  to  meet  the  claim  which  the  wife  is  to  take  after  her 
husband's  death.  Garthshore  vs  Chalie,  10  Ves.  1,  20.  To 
entitle  the  appellant  to  recover  she  must  show  she  had  a  grant 
of  the  specific  property  which  has  been  sold  under  the  decree 
in  this  case.  There  can  be  no  Mich  thing  between  husband  and 
wife  as  debtor  and  creditor.  The  wife,  to  claim,  must  do  so  as 
purchaser.  Rundle  vs  Murgatroyd,  4  Dall.  Rep.  304.  Where 
the  husband  receives  the  wife's  funds,  she  cannot  come  upon 
his  estate  as  a  creditor.  Powell  vs  Hankey,  2  P.  Wms.  82. 
1  Bac.  *1b.  479.  The  eighth  article  of  the  contract  looks  to 
property  to  be  thereafter  settled  on  the  wife  in  strict  conformi- 
ty to  that  contract.  There  being  no  settlement  of  any  such  pro- 
perty made,  the  covenant  can  have  no  effect.  Suppose  this  land 
had  been  taken  in  execution  during  the  life  of  the  husband, 
what  would  have  been  th3  situation  of  the  wife?  She  could  not 
go  into  equity,  because  this  land  was  not  set  apart  to  meet  her 
claim.  The  contract  is  not  to  be  regarded  as  an  ante-nuptial 
settlement.  It  has  none  of  the  attributes  of  such  a  settlement; 
and  not  being  so,  the  widow  cannot  be  considered  as  a  prefer- 
red creditor.  It  is  a  prodigal  allowance  which  a  court  of  equi- 
ty will  not  sanction — there  was  not  a  sufficient  pecuniary  consi- 
deration upon  which  to  found  it.  Dewey  vs  Bayntum,6  East, 
257.  If  the  widow  is  entitled  to  dower,  send  her  to  a  court  of 
law  to  recover  it.  She  has  no  equity  under  so  unequal  a  set- 
tlement with  reference  to  her  merit  or  her  fortune.  The  act  of 
1813,  ch.  100,  gives  her  no  right  to  dower,  because  her  right 
must  have  commenced,  and  be  consummated  -at  the  death  of 
her  husband.  On  his  death  she  was  not  a  resident  of  this  state, 
or  of  the  United  States,  and  therefore  no  dower  interest  vest- 
ed in  her.  Under  the  act  of  March  1780,  ch.  8,  French  sub- 
jects might  hold  lands  in  this  state.  Mrs.  Buchanan  then  may 
hold  lands  during  her  life,  but  that  holding  commences  with  her 
residence;  but  not  to  give  birth  to  any  right  antecedently  acquir- 
ed. The  right  must  commence  after  her  residence.  This  act  is 
nothing  more  than  the  act  of  1813,  ch.  100.  It  must  be  a  resi- 
dence dui  ing  the  life  of  the  husband.  The  treaty  was  to  secure- 
the  right  of  inheritance  only — such  an  interest  as  could  be  devis- 
ed; and  it  is  inapplicable  to  the  question  now  before  this  court. 
Dower  is  not  claimed  upon  independent  grounds  in  oppositioa 


OF  MARYLAND.  289 

BUCHANAN  v.  DESHON.  — 1827. 

to  the  husband.  It  is  a  peculiar  estate;  and  the  wife  is  in  as  of 
the  estate  of  her  husband.  Co.  Litt.  241.  a.  The  widow  is 
not  to  be  assimilated  to  a  plaintiff  in  ejectment,  where  an  alien 
may  recover  against  an  individual. 

R.  Johnson,  in  reply,  referred  to  Chirac  vs  Chirac,  2 
Wheat.  259.  Kelly  vs  Harrison,  2  Johns.  Cos.  29.  1  Bac. 
£b.  484. 

Curia  adv.  vult. 

ARCHER,  J.  at  this  term,  delivered  the  opinion  of  the 
Court.  The  creditors  of  William  Buchanan  applied  to  the 
court  of  chancery  for  the  sale  of  his  real  estate  to  pay  his  debts, 
his  personal  estate  being  insufficient  for  that  purpose.  A  de- 
cree passed  for  its  sale,  and  the  proceeds  were  brought  into  the 
Court  of  chancery  for  distribution.  Mrs-  Buchanan,  his  wi- 
dow, to  whom  he  was  married  in  the  Isle  of  France  in  the 
year  1803,  applied  by  petition  to  the  court  of  chancery  to  re- 
ceive a  dividend  as  a  creditor,  in  virtue  of  certain  marriage  ar- 
ticles entered  into  between  herself  and  her  husband  before  their 
intermarriage  in  the  Isle  of  France;  and  also  claimed  that  a  cer- 
tain portion  of  the  proceeds  of  sale  should  be  allotted  to  her  in 
lieu  of  her  dower  in  the  lands.  Mrs.  Buchanan  was  an  alien, 
never  naturalized,  and  continued  to  reside  in  a  foreign  country 
until  the  death  of  her  husband.  Both  tlese  pretensions  have 
been  rejected  by  the  chancellor,  and  she  seeks  redress  from  his 
judgment  by  an  appeal  to  this  court. 

Mrs.  Buchanan^  being  an  alien,  is  by  the  common  law  not 
entitled  to  dower  in  the  lands  whereof  her  husband  died  seized. 
An  alien  may  purchase  lands,  and  hold  them  against  every  one, 
(except  the  state,)  until  office  found,  or  until  the  government 
shall  exercise  its  authority  over  them.  But  an  alien  cannot 
inherit  lands — the  law,  which  never  does  any  thing  in  vain, 
will  not  cast  the  inheritance  upon  one  whom  its  policy  forbids 
should  hold  it. 

The  widow  cannot  be  considered  as  a  purchaser,  and,  there- 
fore, entitled  to  hold  her  dower  until  office  found,  but  comes  to 
her  estate  by  operation  of  law,  as  does  an  heir  by  .iescent;  and, 
therefore,  cannot  take  it,  and  is  in  the  same  predicament  as  an 
VOL*  i.  37 


290  CASES  IN  THE  COURT  ©f  APPEALS 

BUCHANAN  v.  DESHOS. — 1827. 

alien  claiming  to  inherit.     Either  could  take  by  act  of  the  par- 
ties, as  by  purchase,  but  neither  by  operation  of  law. 

The  act  of  assembly  of  1813,  ch.  100,  which  authorises  the 
endowments  of  aliens  residing  after  their  intermarriage  in  the 
United  States,  does  not,  it  is  believed,  reach  a  claim  situated 
as  this  is.  Mrs.  Buchanan  never  resided,  as  it  is  admitted,  at 
any  time  during  the  coverture,  in  tbe  United  States,  and  with- 
out such  residence  she  was  not  entitled  to  any  benefit  of  the 
provisions  of  that  law.  The  legislature  contemplated  a  capaci- 
ty to  take  dower  at  the  instant  of  the  husband's  death,  and  did 
not  mean  that  the  estate,  which  should  descend  to  the  heirs  at 
law,  should  be  liable  even  for  a  season,  at  any  distant  period  ta 
be  divested  by  the  contingent  removal  and  residence  of  the  wi- 
dow within  the  limits  of  the  state. 

It  is  not  perceived  what  operation  the  treaties  between  the 
United  States  and  the  French  government  of  1778  and  1801, 
or  the  act  of  assembly  of  1780,  ch.  8,  can  have  in  giving  effect 
to  the  claim  of  the  appellant  to  dower.  The  seventh  section  of 
the  last  convention  gave  to  french  subjects  power  to  dispose 
by  donation,  testament,  or  otherwise,  of  goods,  moveable  or 
immoveable,  held  in  the  territory  of  the  United  Statest  to 
such  persons  as  they  shall  think  proper;  and  by  the  same  arti- 
cle the  capacity  to  inherit  is  conferred  on  the  citizens  of  the 
then  French  Republic.  Thus  was  given  the  power  to  devise, 
and  the  capacity  to  inherit.  It  is  doubtful  whether  by  the  most 
liberal  construction,  this  clause  in  the  treaty  could  be  made  to 
extend  to  a  claim  for  dower;  yet  if  extreme  liberality  were  to 
give  to  its  terms  such  a  construction,  yet  it  must  be  observed 
that  the  treaty  expired  by  its  own  limitation  in  1809,  before 
the  death  of  William  Buchanan.  If  a  right  had  vested  un- 
der this  treaty,  there  can  be  no  doubt  but  that  such  right  would 
be  maintained  notwithstanding  the  expiration  of  the  treaty,  and 
that  it  would  have  been  equally  valid  as  if  the  treaty  had  a  per- 
petual duration.  But  Mrs.  Buchanan  had  no  vested  right,  it 
was  altogether  contingent,  depending  upon  her  surviving  her 
husband,  and  her  rights  actually  accruing  before  the  treaty 
should  expire.  It  had  (if  the  treaty  by  any  possibility  could  be 
considered  as  embracing  it,)  a  mere  inception  and  commence- 
ment, and  was  not  perfected  and  complete  until  the  death  of 


OF  MARYLAND.  291 


BUCHANAN  v.  DESHON. — 1827. 


her  husband,  and  until  the  treaty  had  expired,  at  which  time 
her  capacity  to  take  her  dower,  with  which  she  might  have 
heen  clothed,  during  the  existence  of  the  treaty,  ceased  with* 
the  expiration  of  that  convention. 

The  treaty  of  1778,  (which  was  followed  by  the  aci  of  17SO, 
ch.  8,)  provided  the  subjects  of  the  King  of  France  should  not 
be  reputed  aliens,  and  gave  a  disposing  and  inheritable  capaci- 
ty to  them;  but  whatever  might  be  considered  the  operation  of 
this  treaty,  it  was  abrogated  in  1798,  long  before  any  right  to 
dower  in  the  appellant  could  have  had  even  an  inception;  and 
the  act  of  1780,  ch.  8,  (passed  no  doubt  in  part  with  the  view 
of  giving  efficacy  to  the  liberal  principles  of  this  treaty,  and 
from  a  supposed  necessity  of  some  legislative  act  being  necessary 
to  give  operation  to  it,  being  passed  as  it  was  under  the  confede- 
ration,) will  be  found  not  to  be  coextensive  with  the  provisions 
of  the  treaty  to  which  it  refers,  and  to  contain  no  enactment 
(considering  it  as  a  permanent  law,)  which  reaches,  or  in  any 
manner  could  affect  the  claim  of  the  appellant. 

From  the  above  views  it  appearing  that  Mrs.  Buchanan's 
alienage  would  preclude  her  from  her  enjoyment  of  dower,  it  is 
rendered  unnecessary  to  examine  the  marriage  articles  for  the 
purpose  of  ascertaining  whether  the  covenants  therein  contained 
legally  or  equitably  barred  her  of  dower,  nor  shall  we  express 
an  opinion  upon  that  subject. 

If  the  appellant  is  not  entitled  to  dower,  it  is  contended  that 
she  is  entitled  to  be  considered  as  a  preferred  creditor,  to  the  ex- 
tent of  her  claim,  under  the  marriage  articles,  or,  at  all  events, 
to  be  considered  as  having  an  equal  right  witMhe  other  credi- 
tors for  a  distributive  share  of  the  proceeds  of  sale. 

It  is  not  perceived  upon  what  ground  her  pretensions  to  a 
preference  can  be  rested.  The  articles  cannot  be  viewed  as  a 
settlement,  but  must  be  considered  merely  in  the  light  of  a  cove 
nant  or  agreement  made  for  the  valuable  consideration  of  mar- 
riage. To  maintain  this  position  no  authorities  need  be  cited; 
it  may  be  sufficient  to  say  that  the  marriage  articles  have  no 
one  legal  attribute  of  a  marriage  settlement,  so  as  to  overreach  the 
claims  of  creditors.  But  why  should  she  not  be  considered  in  the 
light  of  a  general  creditor  of  her  husband's  estate,  and  although 
entitled  to  no  preference,  yet  to  an  equal  claim  with  the  rest  of> 


CASES  IN  THE  COURT  OF  APPEALS 


BUCHANAN  v.  DESHOS.-    1827. 


the  creditors?  The  absence  of  a  settlement  has  no  bearing  on 
the  question.  A  legal  obligation  can  be  created  without  such 
settlement.  A  covenant  or  agreement  before  marriage,  to  pay 
her  a  given  sum  of  money,  could,  after  his  decease,  be  enforced 
against  the  husband's  representatives.  Then  why  could  not 
this  agreement  to  pay  her  an  annuity?  It  was  made  upon  a 
consideration  which  was  valuable,  and  one  upon  which  the  law 
always  looks  with  a  favourable  eye.  The  mode  stipulated  by 
which  it  is  to  be  raised  ought  not  to  affect  her  substantial  rights 
under  the  agreement.  The  great  object  of  the  Sth  article  was 
to  secure  her  the  payment  of  an  annual  sum,  and  must  be 
equivalent  to  an  agreement  or  obligation  for  that  purpose — the 
mode  by  which  it  was  to  be  effected  was  to  her  immaterial. 
Had  a  settlement,  after  marriage,  been  made,  grounded  upon 
this  ante-nuptial  agreement,  it  would  have  been  clearly  sustaina- 
ble against  the  claims  of  the  creditors.  Rob.  Fraud.  Conv. 
218.  And  it  is  not  perceived  why  a  failure  on  the  husband's 
part  to  comply  with  the  agreement,  can  have  the  effect,  not 
only  of  depriving  the  wife  of  a  preference  over  other  creditors, 
but  of  postponing  her  claim  until  they  shall  be  entirely  satisfied. 
The  obligation  to  pay  cannot  be  lessened  by  the  neglect  to  set 
apart  the  fund  from  which  the  annuity  might  arise.  If  we 
ought  not  to  look  with  peculiar  beneficence  upon  her  claim,  it 
is  surely  entitled  to  equal  regard  and  consideration  with  those 
of  the  creditors.  Her  pretensions  are  condemned  by  no  frau- 
dulent considerations,  but  are  built  upon  the  same  moral  founda- 
tion upon  which  those  of  the  creditors  rest. 

Her  right  to  come  in  with  the  general  creditors  having  been 
determined,  the  extent  of  that  claim  is  the  next  question  for 
consideration.  The  Sth  article  of  the  marriage  agreement,  up- 
on which  it  rests,  is  peculiarly  worded;  but  we  cannot  doubt, 
upon  a  just  construction  of  it,  that  she  was  to  receive  an  an- 
nuity during  life  of  $2000. 

It  would  be  difficult  to  resist  the  claim  of  Mrs.  Buchanan 
to  the  payment  of  the  annuity  during  the  whole  period  of  the 
marriage.  We  conceive  that  it  commenced  at  the  period  of 
their  union;  for  the  parties  covenant  that  there  shall  be  no  com- 
munity of  property,  and  the  husband  covenants  to  support  the 
domestic  establishment,  and  to  maintain  his  wife  and  children 


OF  MARYLAND.  293 


BCCHAXA*  f.  DESHOX. — 1827. 


out  of  his  own  resources.  Hence  there  could  be  no  room  to 
suppose  or  presume  that  this  an.nuity  was  applied  during  cover- 
ture to  the  maintenance  of  the  wife,  as  it  might  be  if  the  hus- 
band had  not  explicitly  bound  himself  to  support  her  out  of  his 
own  estate.  We  could  not  consider  her  maintenance  as  equiva- 
lent to  the  annuity,  because  it  docs  not  appear  to  be  secured 
for  such  an  object.  Nor  can  we  conceive  that  the  circumstance 
of  her  never  having,  demanded  it  during  her  coverture,  could 
be  considered  as  a  waiver  of  her  right,  for  she  was  under  the 
legal  control  of  her  husband,  and  sufficient  reason  might  spring 
from  such  a  consideration  for  her  failure  to  demand  the  annui- 
ty; but  we  are  precluded,  from  the  shape  in  which  these  pro- 
ceedings are  presented  to  the  court,  from  making  her  a  credir 
tor  on  the  estate  for  the  amount  of  her  accruing  annuity  during 
coverture,  as  it  does  not  appear  to  have  been  claimed  on  her 
part,  and  she  only  seeks  to  be  considered  a  creditor  from  the 
death  of  her  husband. 

The   auditor  has  valued  the  life  annuity,  and  added  it  to 
the   arrearages  claimed,  for  the   purpose  of  ascertaining  her 
debt;  and,  for  the  purpose  of  ascertaining  the  childrens'  claim 
he  has  given  them  in  presenti,   a  sum  in  lieu  of  what  they 
are  by  the  contract  to  receive    at  their  mother's  death.     It 
must  be  observed,   as  an   objection  to  this  course,  that  the 
children    by  the  agreement  were  not  to  have  an/  thing  until 
their  mother's  death;  and  the  contract  of  the  husband  with 
the  wife  and  children,   will  be  both  gratified  by  considering 
the  capital  of  $40,000,  from   which  was  to  arise  the  annui- 
ty, as  a  claim  entitled   to  a  dividend,  equally  with  the  other 
claims,   which  dividend  should  by   the  court  of  chancery  be 
invested  in   some  profitable   stock,   the  accruing  interest  on 
which  should  be  directed  to  be  paid  to  the  mother  for  life,  and 
the  principal  at  her  death   be  distributed  equally  among  the 
children.     The  auditor  has  calculated  the  arrearages  of  the  an- 
nuity from  the  death  of  W.  Buchanan,  with  the  accruing  in- 
terest to  the  day  of  sale.     These  arrearages  properly  constitute 
the  debt  due  her,  and  when  the  amount  shall  have  been  ascer- 
tained she  must,  for  such  an  amount,  be  considered  a  creditor, 
and  entitled  to  a  dividend.     This  dividend  then,  together  with 
the  interest  which  shall  arise  on  the  investment,  which  it  bar 


294       CASES  IN  THE  COURT  OF  APPEALS 

BUCHANAN  v.   DESHON. — 1827 

been  suggested  should  be  made,  will  constitute  her  entire  claim 
against  the  estate  of  her  husband. — Decreed,  that  the  order  or 
decree  of  the  court  of  chancery  of  the  4th  of  May  1825,  so 
far  as  it  rejected  the  claim  of  the  appellant  to  be  allowed  any 
portion  of  the  proceeds  of  the  sale  of  the  real  estate  of  her  hus- 
band, William  Buchanan,  be  reversed,  with  costs  to  the  ap- 
pellant, both  in  this  court  and  in  the  court  of  chancery.  And 
this  court  proceeding  to  decree,  as  they  are  of  opinion  the 
chancellor  should  have  done,  do  further  decree,  that  the 
appellant  is  entitled  to  a  dividend  out  of  the  amount  of  the  pro- 
ceeds of  the  sale  of  the  said  real  estate,  as  a  general  creditor 
upon  the  said  fund  to  the  amount  of  the  arrearages  of  the  an- 
nuity due  to  her  under  the  marriage  contract  between  herself 
and  her  said  husband,  in  the  proceedings  mentioned,  together 
with  the  accruing  interest  on  the  said  annuity  from  the  time  of 
the  death  of  her  said  husband,  to  the  time  of  the  sale  of  his 
said  real  estate,  as  estimated  and  ascertained  by  the  auditor  of 
the  court  of  chancery  by  his  account  in  the  proceedings  accom- 
panying his  report  of  the  30th  of  November  1820.  Decreed 
also,  that  over  and  above  the  said  amount  due  to  the  appellant 
for  the  arrearages  of  the  said  annuity,  and  with  a  view  to  give 
her  the  full  benefit  of  the  said  marriage  contract,  as  far  as  may 
be,  consistently  with  the  rights  of  the  other  creditors  of  the 
estate  of  William  Buchanan,  and  of  the  rights  secured  to  the 
children  of  the  said  marriage,  that  the  capital  of  $40,000  from 
which  the  annuity  to  the  appellant,  under  the  said  marriage 
contract,  was  to  arise,  be  considered  as  a  claim  entitled  to  a 
dividend  equally  with  the  other  proper  claims  against  the  pro- 
ceeds of  the  sale  of  the  said  real  estate.  Decreed  also,  that  the 
amount  of  the  said  dividend  upon  the  said  sum  of  $40,000  be 
invested  by  the  court  of  chancery,  or  under  its  direction,  in 
some  profitable  stock,  or  in  some  good  real  securities,  as  in  the 
discretion  of  the  chancellor  shall  seem  to  him  sufficient,  and 
under  all  circumstances  most  to  the  interest  of  the  appellant 
and  her  said  children,  to  be  selected  by  the  court  of  chancery; 
and  that  the  said  court  shall  direct  the  whole  of  the  interest  or 
profits  which  may  from  time  to  time  accrue  upon  the  said  stock 
or  real  securities  as  aforesaid,  during  her  life,  to  be  paid  to  the 
appellant,  or  her  representatives;  and  that  at  her  death,  the 


OF  MARYLAND.  295 


JOLLY  v.  THE  BALTIMORE  EQUITABLE  SOCIETY,  &c. — 1827. 

whole  of  said  investment  of  the  dividend  of  $40,000  be  di- 
vided equally  among  the  children  of  the  marriage  of  the  ap- 
pellant, and  the  said  William  Buchanan,  or  their  proper  re- 
presentatives. Decreed  also,  that  the  chancellor  pass  all  such 
orders  and  decrees  in  the  premises  as  may  be  necessary  to-  car- 
ry this  decree  into  effect. 

DECREE    REVERSED,    &C. 


JOLLY'S  Adm'rs.  vs.  THE   BALTIMORE  EQUITABLE  SOCIETF 

FOR  INSURING  HOUSES  PROM  LOSS  BY  FIRE. June,   1827. 

The  strictness  and  nicety  which  have  been  widely  adopted,  in  the  trial  of 
questions  arising1  on  policies  of  marine  insurance,  are  not  to  their  full 
extent  applicable  to  the  policies  of  a  fire  insurance  association,  formed 
for  the  individual  accommodation  and  security  of  its  members,  the  risks 
being  assumed  on  the  knowledge  acquired  by  an  actual  examination 
made  by  the  officers  of  the  company,  and  not  on  the  representations 
coming  from  the  assured. 

Such  an  association  cannot  be  viewed  as  involving  in  it  a  mutual  relin- 
quishment  of  the  right  of  exercising-  those  ordinary  necessary  acts  of 
ownership  over  their  houses,  which  have  been  usually  exercised  by  the 
owners  of  such  property;  and,  consequently,  the  insured  is  authorised  to 
make  any  necessary  repairs  in  the  mode  commonly  pursued  on  such  oc- 
casions; but  if  by  _gross  negligence  or  misconduct  of  the  workmen  env 
ployed,  a  loss  by  fire  ensue;  or  if  alterations  be  made  in  the  subject  in- 
sured materially  enhancing  the  risk,  and  not  necessary  to  the  enjoyment 
of  the  premises  insured;  or  which,  according  to  usage  and  custom,  were 
not  the  result  of  the  exercise  of  such  ordinary  acts  of  ownership,  as  in 
the  understanding  of  the  parties  were  conceded  to  the  insured  at  the 
time  of  the  insurance,  and  a  loss  by  fire  is  thereby  produced,  then  are 
the  underwriters  released  from  all  liability  to  indemnify  for  such  loss. 

In  the  absence  of  any  contract,  or  established  rule  of  law,  determining1 
what  repairs  or  alterations  the  insured  was  authorised  to  make,  or  whe- 
ther if  authorised,  they  were  made  in  the  usual  way,  the  jury  is  the  pro- 
per tribunal  to  decide  those  questions. 

Alterations  and  additions  to  houses  insured  against  fire,  do  not  per  se  change 
the  risk;  they  remain  subject  to  the  same  perils,  although  their  degree 
may  be  increased  or  diminished,  and  the  jury  13  the  proper  tribunal  to 
decide  whether  the  risk  has  been  increased. 

APPEAL  from  Baltimore  County  Court.  This  was  an  ac- 
tion of  covenant  brought  by  the  appellants  agninst  the  appel- 
lees, the  plaintiffs  and  defendants  in  the  court  below.  The 
action  was  grounded  on  the  policy  of  insurance  hereinafter 


296        CASKS  IN  THE  COURT  OP  APPEALS 

JOLLY  v.   THE  BALTIMORE  EQ.CITABLE  SOCIETY,  &c. — 1827. 

mentioned.  The  defendants,  (now  appellees,)  pleaded  that 
they  had  not  broken  the  covenant,  &c.  on  which  issue  was 
joined. 

At  the  trial  the  plaintiffs,  (the  appellants,)  read  in  evidence 
the  acts  of  1794,  ch.  39,  granting  a  charter  of  incorporation  to 
the  defendants,  and  the  act  of  1801,  ch.  35,  a  supplement  to  the 
said  act  of  incorporation.  They  also  offered  in  evidence  the 
following  policy  of  insurance,  dated  the  26th  of  December 
1814:  "Baltimore  Equitable  Society,  (No.  4,106.)  Whereas 
William  Jolly  of  Baltimore,  in  the  State  of  Maryland,  hath 
become  a  member  of  the  Baltimore,  Equitable.  Society,  for 
insuring  houses  from  loss  by  fire,  agreeably  to  the  deed  of 
settlement  and  act  of  incorporation  thereof,  passed  by  the  le- 
gislature of  Maryland,  in  the  year  of  our  Lord  one  thousand 
seven  hundred  and  ninety-four,  and  hath  paid  and  deposited  in 
the  hands  of  the  treasurer  of  said  society,  nineteen  dollars  and 
thirty-three  cents,  the  receipt  whereof  we  do  hereby  acknow- 
ledge, being  the  full  consideration  for  insuring  him  the  sum  of 
twelve  hundred  dollars,  on  the  property  hereinafter  mentioned. 
Now  be  it  known  by  this  policy  of  insurance,  that  the  said  so- 
ciety do  insure,  and  cause  to  be  insured, against  loss  by  fire,  (on 
the  terms  and  subject  to  the  eventual  deficiency  of  funds  in  the 
said  deed  of  settlement  mentioned  and  expressed,)  the  said 
William  Jolly,  his  heirs,  executors,  administrators  and  assigns, 
in  the  sum  of  twelve  hundred  dollars,  upon  his  brick  dwelling- 
house,  fronting  on  the  south  side  of  New  Church-street,  be- 
tween Charles-street  and  St.  Paul's  Lane,  twenty  four  feet, 
and  extending  back  twenty -one  feet,  being  three  stories  in  front, 
and  two  stories  in  the  rear,  finished  in  the  plainest  manner. 
This  insurance  to  be  and  continue  for  the  full  term  of  seven 
years,  from  and  after  the  date  of  these  presents.  And  for  the 
further  security  of  the  said  insured,  we,  the  directors  of  the 
said  society,  do  hereby  order  and  direct  the  treasurer  thereof, 
for  the  time  being,  when  and  so  often  as  the  said  house,  or  any 
house  built  in  the  room  thereof,  shall  be  demolished  by  fire, 
during  the  term  of  this  insurance,  to  pay  unto  the  said  Wil- 
liam Jolly,  his  heirs,  executors,  administrators  or  assigns, 
within  three  months  after  such  demolition,  out  of  the  funds 


OF  MARYLAND.  297 


JOLLY  v.  TUB  BALTIMORE  KU.IUTABLE  SOCIEPV,  &c. — 18-:7. 

r^  i  . 

of  the  society,  the  sum  of  twelve  hundred  dollars,  and  when 
and  so  often  as  the  said  house,  or  any  house  built  in  their 
room,  or  either  of  them,  shall  be  damaged,  injured  or  im- 
paired by  fire,  during  the  said  term,  that  the  same  be  paid 
agreeably  to  the  estimate  thereof,  not  exceeding  the  sum 
of  twelve  hundred  dollars,  out  of  the  funds  of  the  society 
as  aforesaid,  or  that  the  said  buildings  be  repaired,  and  put  in 
as  good  condition  as  they  were  before  such  damage  accrued. 
And  we  do  further  order  and  direct  the  said  treasurer,  for  the 
time  being,  at  the  expiration  of  this  policy,  to  repay  to  the 
said  William  Jolly,  his  heirs,  executors,  administrators  or  as- 
signs, nineteen  dollars,  thirty-three  cents,  the  sum  by  him  paid 
and  deposited  as  aforesaid,  together  with  his  proportionable 
part  of  the  profits  of  the  business,  (if  any,)  or  so  much  of 
botli  or  either  of  them  as  shall  remain  unappropriated,  towards 
the  payment  of  losses,  and  the  necessary  expenditures  of  the 
society;  all  which  payments  and  repairs  shall  be  made  agreea-> 
bly  to  the  principles  and  provisions,  and  subject  to  the  limita* 
tions  and  eventual  deficiency  of  funds  in  the  said  deed  of  set- 
tlement mentioned  and  expressed.  It  is  provided  in  the  deed 
of  settlement,  and  hereby  declared,  that  if  the  said  deposit  mo- 
ney shall  not  be  demanded  at  the  office  of  the  society,  within, 
one  year  after  the  expiration  of  this  policy,  that  then  the  right 
of  payment  thereof  shall  cease,  and  the  same  remain  sunk  to 
the  insured,  for  the  benefit  of  the  society.  It  is  also  provided 
in  the  deed  of  settlement,  and  is  hereby  declared  and  under- 
stood, that  if  the  entire  funds  of  the  society  should  at  any  time 
be  insufficient  fully  to  pay  and  discharge  all  the  losses  incurred, 
that  then  and  in  such  case  a  just  average  shall  be  made,  and  the. 
payment  to  be  demanded  in  virtue  of  this  policy,  in  case  of 
loss  or  damage  by  fire  to  the  premises  insured,  shall  be  a  divi- 
dend of  the  said  funds  in  proportion  to  the  sum  insured,  agree- 
ably to  the  true  intent  and  meaning  of  the  said  deed  of  settle- 
ment. If  the  premises  insured  in  this  policy  are  or  shall  be 
insured  elsewhere,  this  policy  to  be  void,"  &c.  It  was  admitted 
that  the  said  policy  was  duly  executed,  and  that  the  insured 
was  at  the  time  the  owner  of  the  house  in  question.  The 
plaintiffs  also  offered  in  evidence,  that  after  the  death  of  the 
insured,  the  plaintiffs,  who  arc  his  administrator^  duly  appoint* 
YOL.  p.  38 


298  CASES  IN  THE  COURT  OF  APPEALS 

JOXIY  v.  THE  BALTIMOKE  EQ.UITABLE  SOCIETT,  &c. — 1827. 

ed,  took  possession  ot  the  said  house,  and  the  same  having  be- 
come much  dilapidated,  they  determined  to  give  it  a  thorough 
repair,  and  in  February  1820,  engaged  a  workman  to  make  the 
repairs;  that  while  the  said  repairs  were   going   on,  in  March'' 
1820   the  house  was  set  on  fire  by  an  incendiary,  and  damaged 
in  the  floors,  stair-cases,  window  frames  and  roof,  to  the  value 
of  $600;  and  that  due  notice  Was  given  to  the   defendants  of 
the  said  loss,  and  a  demand  made  in  clue  form  that  they  should 
repair  the  damages,  or  pay  the  sum  insured,  according  to  the 
policy;  but  the   defendants  refused  to  repair  or   pay  the  said 
sum,  alleging  that  they  were  not  liable  to  be  charged  with  ei- 
ther, and  have  ever  since  refused  to  repair  or  pay  the  said  sum 
insured,  or  any  part  thereof.     The  plaintiffs  then   gave  in  evi- 
dence, that  no  carpenters*   or  joiners'  work   was  done  in   said 
house  for  any  other  purpose  than  for  repairing  the  said  house; 
that  a  work  bench  is  considered   by  carpenters  in  the  light  of 
one  of  their  tools,  and  that  it  was  usual  to  do  the  whole  or  the 
chief  part  of  the  work  at  the  house  undergoing  repairs,  when 
those  repairs  were  expected  or  intended  to  be  considerable; 
and  that  the  repairs  made  on  this  house  as  aforesaid  were  ne^ 
cessary  for  the  purpose  of  rendering  it  tenantable.     The  plain- 
tiffs further  gave  in  evidence,  that  no  repairs  were  ever  made 
upon  the  aforesaid  house  after  the  fire  damaged  it,  as  before  set 
out;  but  the  same  remained,  until   within  four  or  five  months 
since,  in  a  ruinous  statb,  without  being  tenanted  or  tenantable, 
when   it  was  wholly  pulled  down;  and  that  the  ordinary  rent 
of  such  a  house  so  situated,  if  in  good  repair,  was  at  least  $150 
per  annum.     It  was  admitted  that  the  premises  insured  by  the 
said  policy  were  held  in  leasehold.     The  defendants  then  of- 
fered in  evidence,  that  the  repairs  made  by  the  plaintiffs  to  the 
house  in  question  was  a  thorough   repair,  and  made  in  the  fol- 
lowing manner — A  plank  floor  was  laid  in  the  kitchen  pait  of 
the  basement  story,  which  floor  was  of  brick  at  the  time  the 
insurance  in  question  was  made,  the  old  porch  at  the  front  door 
was  taken  down,  and  a  new  one  of  the  same  description  put 
up;  new  stairs  were  made  from  the  basement  story,  to  the  first 
floor,  new  doors  were  made  for  several  of  the  rooms,  and  new 
window  cases  in  some  instances,  put  in,  in  the  basement  story. 
That  in  order  to  make  these  repairs  all  the  materials  were  tak- 


OF    MARYLAND.  299 


JOLLY  v.  THK  BALTIMORE  K,Q.uiTABLZ  SOCIETY,  &.c. — 1827. 

en  to  the  house  in  question,  in  a  rough  state,  and  were  there 
dressed  and  fashioned  in  the  usual  manner;  a  work  bench  and 
the  necessary  tools  were  carried  to  the  house  for  the  purpose 
of  doing  the  work;  that  before  the  fire  in  question  took  place, 
the  workmen  had  been  engaged  in  making  the  repairs  from 
four  to  six  weeks;  that  during  that  time  nobody  lived  in  the 
house,  and  the  chips  and  shavings  and  fragments  of  wood,  pro- 
duced by  the  work  of  the  joiners  or  carpenters,  were  lying 
about  the  house,  nor  had  it  been  occupied  for  some  weeks  pre- 
viously thereto,  the  same  having  been  suffered  by  the  owners 
to  be  untenantable  for  want  of  repairs.  That  the  materials 
were  dressed  and  fashioned  in  a  room  on  the  first  floor  above 
the  basement  story,  where  the  work  bench  was  placed,  and  the 
floor  of  that  room  was  covered  with  shavings  and  fragments  of 
plank  and  seasoned  wood,  and  that  it  was  in  this  room  the  fire 
commenced.  And  the  witness  proved,  that  there  was  reason  to 
believe  that  the  fire  which  consumed  the  premises  had  been  in- 
troduced through  the  broken  window,  among  the  shavings  with- 
in, as  the  interior  of  the  building  was  more  accessible  in  that- 
way  than  any  other.  The  defendants  then  prayed  the  direc- 
tion of  the  court  to  the  jury,  that  if  the  jury  should  find  the 
evidence  as  above  stated  in  this  exception  to  be  true,  then  the 
plaintiffs  were  not  entitled  to  recover.  Which  opinion  and  di- 
rection the  Court,  [»flrchcr,  Ch.  J.]  gave  to  the  jury.-  The 
plaintiffs  excepted;  and  the  verdict  and  judgment  being  against 
them,  they  appealed  to  this  court. 

The  cause  was  argued  at  the  last  June  term  before  BUCHA- 
JSTAN,  Ch.  J.  and  EAHLE  and  DORSET,  J. 

Williams,  (District  Attorney  of  U.  S.)  for  the  Appellants, 
contended, 

1.  That  the  repairs,  which   are  described  in  the  bill  of  ex- 
ceptions as  going  on,  in  regard  to  the  house  insured,  and  the  ne- 
cessary occupancy  thereof  by  the  carpenter  and  his  tools,  were 
no  violation   of  the  terms  of  the  policy  of  insurance,  but  were 
entirely  consistent  with  the  contract  between  the  parties. 

2.  That  the  court  below  erred  in  giving  an  absolute  direc- 
tion to  the  jury  that  the  plaintiffs  were  not  entitled  to  recover, 
instead  of  leaving  it  to  the  jury  to  say  by  their  verdict,  whe- 


300  CASES  IN  THE  COURT  OF  APPEALS 

JOLLY  r.  THE  BALTIMORE  EQ.UTTABLE  SOCIETY,  &c — 1827. 

ther  the  risk  of  the  insurers  was  so  enhanced  by  the  repairs, 
that  the  defendants  were  not  liable  on  the  policy  to  indemnify 
the  insured  for  the  loss  by  fire,  which  happened  to  the  premises. 

On  the  first  point,  he  referred  to  the  act  incorporating  the 
Appellees,  1794,  ch.  39,  s.  1,  Art.  28,  32.  1  Marsh.  185,  200, 
Taylor  vs  Cur  Us,  3  Serg.  4*  Low.  69. 

On  the  second  point,  he  cited  1  Stark.  Evid.  409,  410,  fyc* 
1  Marsh.  469,  (note,)  470,  (and  note,)  473,  (noteb.)  Li- 
vingston vs  Maryland  Insurance  Company,  6  Crunch,  279. 
1  Phill.  Evid.  13,  (note,)  128.  Hucks  vs  Thornton,  3  Sc.rg. 
8?  Low.  15.  Duff  vs  Budd,  7  Serg.  fy  Low.  399.  Laidlaw 
vs  Organ,  2  Wheat.  178.  Roach  vs  Pendergast,  3  Harr.  $• 
Johns.  33.  Jlthey's  Ex'x.  vs  Collins,  1  Harr.  $,*  Johns.  213. 

Wirt,  (Attorney  General  of  U.  S. )  and  Taney,  for  the  Ap- 
pellees, on  the  first  point,  cited  Maryland  Insurance  Com- 
pany vs  Le  Roy,  7  Cranch,  26. 

On  the  second  point,  they  cited  1  Stark.  Evid.  416,  417. 

Curia  adv.  vult. 

DORSET,  J.  at  the  present  term,  delivered  the  opinion  of  the 
Court.  The  Baltimore  Equitable  Society  for  Insuring 
Houses  from  loss  by  fire,  being  a  private  association  formed 
by  owners  of  houses  in  the  city  of  Baltimore,  by  which,  col- 
lectively, they  agree  to  contribute  to  the  payment  of  all  losses 
by  fire,  by  them  individually  sustained,  it  appears  reasonable 
that  their  policies  should  receive  a  fair  and  liberal  construction, 
free  from  all  captious  technical  exceptions. 

The  strictness  and  nicety  which  have  been  wisely  adopted  in 
the  trial  of  questions  arising  on  policies  of  Marine  Insurance 
are  not,  to  their  full  extent,  applicable  to  the  policies  of  this 
society.  The  former  are  entered  into  by  the  assurer  almost  ex- 
clusively on  the  statements  and  information  given  by  the  as- 
sured himself;  in  the  latter  case  the  insurers  assume  the  risk 
on  the  knowledge  acquired  by  an  actual  survey  and  examina- 
tion made  by  themselves,  not  on  representations  coming  from 
the  insured.  This  association,  therefore,  formed  for  their  in- 
dividual accommodation  and  security,  cannot,  upon  any  sound 
principles  of  construction,  be  viewed  as  involving  in  it  a  mu- 
tual relinquishment  of  the  right  of  exercising  those  ordinary, 


OF  MARYLAND.  301 


JOLLY  v.  Tar.  HALTIMORK  E%UITABU  SOCIETY,  &fc. — 1827. 

necessary  acts  of  ownership  over  their  houses,  which  have 
been  usually  exercised  by  the  owners  of  such  property.  It 
hence  follows,  that  the  insured  is  authorised  to.  make  any  ne- 
cessary repairs  in  the  mode  commonly  pursued  on  such  occa- 
sions. But  if,  by  the  gross  negligence  or  misconduct  of  the 
•workmen  employed,  a  loss  by  fire  ensue;  or  if  alterations  be 
made  in  the  subject  insured  materially  enhancing  the  risk,  and 
not  necessary  to  the  enjoyment  of  the  premises  insured,  or  ac- 
cording to  usage  and  custom  were  not  the  result  of  the  exer- 
cise of  such  ordinary  acts  of  ownership,  as  in  the  understand- 
ing of  the  parties  were  conceded  to  the  insured  at  the  time  of 
insurance,  and  a  loss  by  fire  is  thereby  produced;  then  are  the 
underwriters  released  from  all  liability  to  indemnify  for  such 
loss.  The  policy  of  insurance  here  being  perfectly  silent  on 
the  subject,  and  no  general  principle  or  rule  of  law  having  been 
established,  in  cases  like  the  present,  by  which  to  determine, 
whether  the  repairs  or  alterations  were  such  as  the  insured  had 
authority  to  make  as  being  necessary  to  the  user  of  the  proper- 
iy;  and  whether,  if  authorised,  they  were  made  in  the  usual 
and  customary  way,  the  proper  tribunal,  to  decide  those  ques- 
tions, is  the  j«ry,  and  not  the  court. 

It  appears  to  have  been  conceded  in  argument,  that  ordinary, 
necessary  repairs  might  be  made  by  the  insured;  but  not  a 
thorough  repair  like  the  present.  The  proof  of  the  appellants- 
is  "that  the  repairs  made  on  this  house  were  necessary  for  the 
purpose  of  rendering  it  tenantable,"  and  that  they  were  made 
in  the  usual  way.  The  bill  of  exceptions  shows,  that  by  the 
word  "repairs"  both  parties  meant  all  that  was  done  to  the 
house.  The  distinction  attempted  to  be  taken  has  not  been 
supported  by  any  authorities,  and  in  common  sense  and  jus- 
tice, there  can  be  no  discrimination  between  the  right  to  make 
ordinary  repairs,  and  such  a  thorough  repair  as  is  necessary  for 
the  purpose  of  rendering  the  house  tenantable. 

It  has  been  stated  by  the  counsel  of  both  parties,  that  there 
can  be  found  in  the  books  no  adjudication  on  a  policy  against, 
fire  analogous  to  the  present.  It  becomes  this  court,  then,  ma- 
turely to  deliberate  before  they  sanction  the  doctrine  contend- 
ed for  by  the  appellees,  which,  contrary  to  justice  and  the  un- 
derstanding and  intention  of  the  parties  at  the  formation  of 


302  CASES  IN  THE  COU11T  OF  APPEALS 

: — X* 

JOLlY  V    TrtE  BAIT   MORE  EXCITABLE  SOCIETY,  &.C.  — 1827 

their  contract,  annihilates  all  claim  to  indemnity  on  the  part  of 
the  insured,  and  yet  leaves  the  insurer  in  the  full  enjoyment  of 
the  premium  for  responsibility.     It  perhaps  scarcely  ever  hap- 
pens, that  during  the  period  of  seven  years,  the  usual  term  to 
which  such  policies  are  limited,    some  trifling  alteration  or  ad- 
dition is  not  made  to  the  property  insured;  as  a  new  door  or 
window  opened,  an  additional  closet,  shelf,  or  such  like  fixture 
erected.     Any  ot  which  acts,  if  the  grounds  assumed   by  the 
appellees  are  supported,  change  the  identity  of  the  property, 
create  a  new  risk,  and  absolve  the   underwriters.     Indeed,  if 
alterations  and  additions  are  per  se  a  change  of  the  risk,  it  would 
follow,  that  the  erection  of  a  parapet  wall  in   a  cit}-,   a  substi- 
tution of  brick  for  a  wooden  floor,  or  a  marble  for  a  wooden 
mantlepiece,  or   the  introduction  of  a  coal-grate  in  a  chimney 
constructed   for  wood   as  the  only  fuel,  though  .lessening  the 
peril  would  discharge  the  policy;  as,  according  to  the  princi- 
ples of  maritime  insurance,  every  change  of  the  risk  exonerates 
the  underwriter,  whether  the  danger  be  increased   or  diminish- 
ed, or  happen  the  loss  from  whatsoever  cause  it  may.     To  in- 
fer, without  any  express  provision  or   necessary  implication 
arising  out  of  the  contract  itself,   or  public  policy   demanding 
it,  that  the  insured  surrendered  all  right  to  make  such  common 
place,  trivial,  unimportant  additions  to,  and  alterations  of  his 
property,  as  its  safety  or  his  convenience  or  comfort  might  sug- 
gest, is  a  construction  too  rigorous  to  be  rational.     The  effect 
of  which  would   be  to  render  worse  than  useless  those  most 
useful   and  indispensable  institutions  in  populous  cities — the 
Fire  Insurance  Companies,  and  give  a  fatal   stab  to  our  enter- 
prising manufacturers.     Who,  if  suing  for  a  loss  under  a  policy 
covering  the  manufactory  and  machinery,  would  be  turned  out 
of  court  without  remedy  or   hope,  if  perchance   the  insurer 
could  prove  that  the  most  immaterial  alteration  or  improve- 
ment were  made  in  his  machinery  by   substitut;ng  the  power 
of  the  screw  for  that   of  the  lever,   the  leather  strap  for  the 
iron  wheel,  or  the  iron  for  the  wooden  shaft.     But  suppose  all 
the  rules  of  marine  insurance  applicable  to  the  question  at  bar, 
ean  a  case  be  found  in  which  it  was  ever  contended  that  to  add 
to  the  equipment  of  a  vessel  insured  a  yard  more  of  canvass, 
or  an  additional  cleet  or  clew  line,  was  to  vacate  the  insurance? 


OF  MARYLAND. 


JOLLY  v.  THE  UALTIMOUE  KHUITABLE  SOCIETY,  &.c. — 1827. 

The  numerous  and  warmly  litigated  questions  of  deviation 
and  change  of  risk,  which  burthen  the  records  of  courts  of  jus- 
tice, bear  no  analogy  to  that  now  under  consideration.  There, 
departing  from  the  course  of  the  voyage,  or  performing  it  at 
any  other  lime  than  that  required  by  the  policy,  subjects  the 
vessel  to  different  perils  than  those  contemplated  by  the  con- 
tracting parties;  a  flaw,  a  whirlpool,  a  breaker,  may  be  encoun- 
tered in  one  course  of  the  voyage,  which  would  be  a  cause  of 
neither  danger  nor  alarm  at  a  mile's  distance.  The  tempests  or 
casualties  attending  the  performance  of- a  voyage  to-day,  bear 
no  similitude  or  proportion  to  those  attendant  on  a  like  voyage 
of  to-morrow.  But  no  such  total  revolution  is  wrought  in  the 
perils  to  a  house  insured  against  fire,  which  has  undergone  al- 
terations or  repairs;  it  remains  subject  to  the  same  perils,  al- 
though their  degree  may  be  increased  or  diminished.  It  be- 
comes a  question  of  increase,  not  of  change  of  risk,  for  the  as- 
certainment of  which  the  jury,  and  not  the  court,  is  the  pro- 
per tribunal. 

The  only  authority  which  was  strongly  relied  on  by  the  ap- 
pellees' counsel,  and  which  was  pressed  as  strictly  analogous  to 
the  case  before  the  court,  was  that  of  The  Maryland  Insur- 
ance Company  vs>  Le  Roy,  and  others,  1  Cranch,  26,  which 
was  considered  as  turning,  not  upon  the  common  principle  of 
deviation,  but  upon  the  ground  of  a  torfeiture  of  the  insurance 
by  a  change  of  the  cargo  insured.  The  suit  there  instituted 
was  upon  a  policy  on  the  ship,  and  the  right  to  recover,  there- 
fore, could  not  be  affected  by  any  change  in  the  cargo,  unless 
the  risk  were  increased,  or  it  were  a  violation  of  an  express 
warranty.  The  supreme  court,  in  reversing  the  judgment  of 
the  circuit  court,  negative  the  idea  that  their  decision  was  bot- 
tomed on  an  increase  of  risk,  and  furnish  not  the  slightest  pre- 
text for  placing  it  on  the  ground  of  an  express  warranty.  It 
cannot,  therefore,  be  viewed  as  determining  any  other  than  the 
familiar  question  of  deviation;  and  although  the  reasoning  of 
the  court  is  not  marked  with  that  precision  and  perspicuity, 
which  is  usually  displayed  by  the  learned  judge,  by  whom  the 
opinion  was  pronounced,  yet  great  reluctance  would  be  felt  in, 
putting  a  different  construction  upon  it,  after  an  examination  o( 


304  CASES  IN  THE  COURT  OF  APPEALS 

JOLLY  v.  THE  BALTIMORE  EQ.UITABLK  SOCIETY,  &c. — 1827. 

the  authorities  on  the  subject,  the  facts  in  the  cause,  and  the 
grounds  upon  which  the  reversal  was  claimed.  The  ship 
was  insured  "at  and  from  New  York,  to  five  ports  on  the 
coast  of  Africa,  between  Castle  D'Elmina  and  Cape  Lo- 
pcz,  including  those  ports,  with  liberty  of  touching  and  trad- 
ing at  all  or  any  of  said  ports  backwards  and  forwards,  and  at 
and  from  her  last  port  on  the  coast  to  New  York;  with  liberty 
of  touching  at  the  Cape,  de  Verds,  on  her  return  passage,  for 
stock,  and  to  take  in  water."  The  declaration  was  for  a  total 
loss  by  the  perils  of  the  sea;  and  the  bill  ol  exceptions,  among 
other  facts,  stated,  "that  the  ship,  in  the  prosecution  of  her 
voyage,  arrived  at  the  island  of  Fo%o,  one  of  the  Cape  de, 
Verd  Islands,  on  the  7th  of  May  1S05,  where  the  captain  re- 
ceived on  board  four  bullocks  and  four  jack  asses,  besides  wa*- 
ter  and  other  provisions,  and  unstowed  the  dry  goods,  .and 
broke  open  two  bales,  and  took  out  forty  pieces  of  each  for 
trade.  That  the  ship  remained  there  until  the  24th  of  May. 
That  the  time  generally  employed  by  a  vessel  in  taking  in 
Stock  and  water  at  the  Cape  de  Verd  Islands,  is  from  two  to 
three  days,  unless  the  weather  should  be  very  unfavourable; 
that  the  weather  was  good;  and  that  the  bullocks  and  jack  asses 
encumbered  the  deck  much  more  than  small  stock  would 
have  done."  Upon  these  facts  the  court  were  prayed  to  in- 
struct the  jury,  that  the  taking  the  jack  asses  on  board  the 
ship,  while  she  lay  at  the  Island  Fogo,  was  not  within  the 
privilege  allowed  to  ihe  insured  to  touch  at  the  Cape  de  Verd 
Islands,  in  the  performance  of  the  voyage  insured,  for  the  pur- 
chase of  stock,  and  to  take  in  water,  and  therefore  vitiates  the 
policy;  which  direction  the  court  refused  to  give;  but  the  court 
directed  the  jury,  that  the  taking  in  the  four  jack  asses  at  the 
island  as  aforesaid,  did  not  avoid  the  policy  unless  the  risk  was 
thereby  increased.  To  this  direction  an  exception  was  taken; 
and  Mr.  Pinkney,  in  showing  error,  alleges  "that  the  court  re- 
fused to  say  that  the  taking  in  of  the  jack  asses  discharged  the 
underwriters,  although  it  might  produce  delay.  It  is  not  stat- 
ed that  it  did  not  produce  delay,  and  the  evidence  shows  that  it 
did.  The  principle  of  deviation  is  not  increase  of  risk,  but 
delay.  If,  therefore,  here  was  any  delay,  the  policy  was  void 
from  that  time."  By  thus  arguing,  that  eminent  lawyer  ad- 


OF  MARYLAND.  3(56 

Joi.i.v  f.  THB  BALTIMORE  KQ.UITAHLE  SOCIETY,  &c. — 1827- ' 

mils  that  the  policy  wis  not  vacated  by  the  simple  fact  of  tak- 
ing the  jack  asses  on  board,  but  by  the  delay  at  the  Island  of 
FogOy  for  which  delay  no  other  reason  was  assigned.  Indeed, 
when  \vc  advert  to  the  facts  in  the  cause,  that  the  ship  remain- 
ed fourteen  days  at  Fogo  without  pretext  or  apology  for  so  do- 
ing, it  is  difficult  to  imagine  how  a  momentary  doubt  could  ex- 
ist on  the  question  of  deviation.  And  it  is  much  more  difficult 
to  comprehend  why  an  objection  so  obviously  fatal  to  the  claims 
of  the  insured,  should,  by  the  prayer  of  the  underwriters,  be  so 
loosely  arid  indistinctly  presented  for  decision  to  the  court  be- 
low. That  the  supreme  court,  by  whom  it  was  decided,  view 
ihiscasc  as  turning  principally  on  the 'point  on  which  it  is  here 
made  to  depend,  is  manifest  from  the  review  taken  of  it  by 
Chief  Justice  Marshall,  in  Hughes vs  Union  Ins.  Co.  3  IVhcat. 
166.  lie  says,  "the  assured  traded,  and  the  delay  was  consi- 
derable and  unnecessary;  the  risk,  if  not  increased,  might  be 
and  certainly  was  varied."  But  admit  that  the  interpretation 
which  has  been  given  by  the  appellees'  counsel  to  the  case  of 
The  Maryland  Ins.  Co.  vs  Le  Roy,  and  others,  be  correct, 
and  that  the  court  there  decided  that  the  taking  on  board  the 
jack  asses,  whether  it  caused  delay  or  increased  the  risk  or  not, 
discharged  the  underwriters,  this  court  should  not  follow  a  de- 
cision at  war  with  reason,  justice  and  public  policy,  which  is 
bottomed  on  a  nisi  jirius  determination,  long  since  acknow- 
ledged by  its  author  to  have  been  overruled;  and  which  is  in- 
consistent with  numerous  decisions  of  tribunals  of  the  highest 
authority  made  after  argument  and  due  deliberation.  Among 
which  may  be  numbered  the  cases  o(  Raine  vs  Sell,  9  East, 
195.  Kane  vs  Columbian  Ins.  Co.  2  Johns.  Rep.  264.  Cor- 
mack  vs  Gladstone,  11  East,  347.  Laroche  vs  Oswin,  12 
East,  131.  Kingston  vs  Girard,  4  Dallas,  274;  and  Hughes 
vs  Union  Ins.  Co.  3  Wheat  159. 

The  case  of  Stetson  vs  The  Massachusetts  Fire  Ins.  Co.  4 
Mass.  Rep.  330,  (not  cited  in  the  argument)  though  not  contain- 
ing the  same  facts,  yet  presented  for  decision  a  question,  which 
in  principle  cannot  be  distinguished  from  that  now  before  the 
court.  In  his  proposals  for  insurance  Stetson  represents  his 
house,  (on  which  insurance  was  required,)  as  connecteu  with, 
other  buildings  on  one  side  onlyj  and  such  at.tho  time  was  the- 
VOL.  j/  39 


306       CASES  IN  THE  COURT  OF  APPEALS 

JOLLT  v.  THE  BALTIMORE  EVJITABLE  SOCIETT,  &c. — 1827 

fact.  Under  the  authority  derived  from  the  insured  a  frame  build- 
ing was  subsequently  erected  and  joined  to  the  house  insured, 
so  that  it  became  connected,  in  relation  to  other  buildings,  oa 
two  of  its  sides.  .  It  was  afterwards  consumed  by  fire,  together 
with  the  building  annexed  to  it.  By  one  of  the  articles  of  the 
company  (to  the  operation  of  which  all  persons  contracting  with 
them  are  subjected,)  it  is  provided  that  the  insurer  may  declare 
the  policy  null  and  void  in  all  cases  where  the  insured  shall 
have  repaired  or  enlarged  a  building,  and  thereby  rendered  the 
•risk  greater.  The  question  submitted  was  in  effect,  whether 
the  court  could  ex  natura  rei  pronounce  the  erection  of  tho 
frame  building  an  increase  of  risk,  or  whether  that  fact  were  a 
matter  to  be  found  by  a  jury.  The  learned  juflge,  by  whom 
the  opinion  of  the  court  was  pronounced,  states,  "tint  the  ques- 
tion may  be  examined  upon  general  principles,  and  upon  the 
terms  of  the  contract."  In  considering  it  on  general  princi- 
ples he  states,  that  "if  every  the  least  alteration  or  enlargement 
of  a  building  insured  against  fire  is  necessarily  and  of  course 
material  to  the  risk,  and  whenever  it  is  made  by  the  act  or 
consent  of  the  insured,  is  to  vacate  the  policy,  unless  it  should 
be  renewed  by  the  insurer,  so  close  a  restraint  upon  the  party 
would  place  contracts  of  this  kind  in  a  state  of  complete  un- 
certainty, and  would  render  them  so  inconvenient  as  wholly  to 
prevent  them."  That  "the  true  reason  why  in  a  case  of  ma- 
rine insurance,  a  deviation  discharges  the  insurer,  is  not  the 
increase  of  the  risk,  but  that  the  party  contracting  has  volun- 
tarily substituted  another  voyage  for  that  which  was  insured. 
This  change  of  the  voyage  determines  the  contract  from  the  time 
it  happens.  The  same  strictness  is  not  requisite  in  an  insurance 
against  fire,  where  the  building,  although  enlarged  or  repaired, 
remains  the  same:  and  it  is  only  necessary  to  guard  the  insurer 
from  an  increase  of  risic,  by  an  alteration  of  the  building  in- 
sured." He  further  states,  that  it  is  obvious  that  "an  alteration 
may  diminish  and  not  increase  the  risk;  and  if  this  may  be  rea- 
sonably supposed  in  any  case,  then,  whether  the  enlargement 
of  a  building  insured  has  increased  the  risk  of  the  insurer,  is 
a  question  of  fact  to  be  determined  by  the  jury." 

It  should  not  bo  forgotten,  that  there  is  no  express  stipulation 
restricting  the  insured  as  to  the  acts  of  ownership  he  may  ex- 


OF  MARYLAND.  307 


JOLLY  ».  THE  BALTIMORK  KQ.UITABLE  SOCIETY,  &c. — 1827. 

ercise  over  liis  property  $  or  the  repairs  or  alterations  he  may 
cause  it  to  undergo.  All  restraints  of  this  character,  therefore, 
arise  from  necessary  implication,  founded  on  the  presumed  in- 
tentions and  understanding  of  the  parties;  and  are  such  as  are 
called  for  by  the  dictates  of  reason, 'justice  or  public  policy. 
Apply  this  doctrine  to  the  tase  at  bar,  as  exhibited  in  the  ap- 
pellants' proof,  the  truth  of  which  must  be  conceded  in  grant- 
ing the  prayer  .of  the  appellees.  All  the  work  was  done  in 
the  usual  manner,  and  was  necessary  to  render  the  house  te- 
nantable. The  insurer,  before  he  assumed  the  risk,  viewed 
the  property,  examined  its  condition,  considered  all  the  casual- 
ties and  incidents  to  which  it  might  be  liable,  and,  until  the 
contrary  is  proved,  is  presumed  to  be  as  cognizant  of  these 
matters  as  the  insured  himself.  Did  he  not  know  that  the  in- 
sured intended  to  derive  benefit  from  the  use  and  occupation  of 
his  house;  that  he  contemplated  keeping  it  in  a  tenantable  con- 
dition? If  so,  does  not  reason,  justice,  and  the  understanding 
of  the  parties,  revolt  at  the  idea  of  an  implication  which  should 
wrest  from  the  insured  the  enjoyment  of  those  important,  in- 
valuable rights,  for  the  security  of  which,  cr  an  equivalent 
therefor,  the  very  contract  of  insurance  itself  was  effected?  Nay, 
docs  not  common  sense,  public  policy,  and  fair  dealing  between 
man  and  man,  demand  that  you  should  consider  it  as  having 
been  the  intention  of  the  parties,  and  as  of  the  very  essence  of 
the  contract,  that  the  insured  should  exercise  such  acts  of 
ownership  over  his  property,  as  were  necessary  to  keep  it  in 
tenantable  condition? 

This  being  a  case  in  which  the  intervention  of  a  jury  way 
indispensably  necessary  to  adjust  the  rights  of  the  contending 
parties,  the  county  court  erred  in  granting  the  prayer  of  the 
appellees,  that  the  appellants  were  not  entitled  to  recover;  for 
which  their  judgment  should  be  reversed. 

JUDGMENT  REVERSED,  AND  TKOCEDENDO  AWARDED. 


CASKS  IN  THE  COUKT  OF  APPEALS 


».   I-I.ANNAGAN.- 


,  et  al.  vs.  FLANXAGAN'S  Adnrr. — June,  1827. 

The  jury  alone  are  competent  to  decide  on  facts  of  which  contradictory* 
evidence  may  be  offered  Before  the  court  can  legally  give  an  instruc- 
tion to  the  jury,  on  the  prayer  of  one  of  the  parties,  they  must  admit  the 
truth  of  the  testimony  offered  by  the  other,  and  1hat  also  offered  by  tha 
first,  which  may  operate  in  his  opponent's  favour,  and  the  existence  of 
all  material  facts  reasonably  deducible  therefrom,  even  though  contra- 
dicted in  every  particular  by  the  testimony  of  him  who  seeks  the  in- 
struction. Upon  no  other  principle  can  the  case  be  withdrawn  from  the 
consideration  of  the  jury.  . 

Where  the  extent  and  limits  of  property  leased  are  not  exactly  defined  by 
the  contract  under  which  a  tenant  took  possession,  and  in  an  action  to 
recover  the  rent,  the  tenant  relied  upon  an  eviction  of  part  of  the  de- 
mised premises  by  a  third  person  claiming  under  his  landlord,  as  bar  to 
its  payment,  the  jury  should  look  to  all  the  facts  in  evidence,  and  from 
them  determine  the  limits  of  the  tenant's  lease,  and  whether  there  was 
an  eviction  or  not. 

Where  a  landlord  having1  leased  property  to  one  tenant,  subsequently  les«v 
esa  part  of  the  same  to  another,  -the- first  is  under  no  obligation  to  resist 
the  second  by  force  in  taking  possession;  and  notice  by  the  first  to  the 
Second  tenant,  (after  a  distress  levied  by  the  landlord  on  the  former,)  that 
he  should  consider  him  his  tenant,  is  nugatory  and  inoperative. 

Joint  property  in  the  possession  of  one  of  the  owners,  may  be  seized  and 
sold  under  a  fieri  facia*  against  him  only;  and  the  purchaser's  right 
would  be  complete  to  the  extent  of  the  interest  of  him  against  whom 
the  execution  issued,  and  he  might  hold  accordingly. 

Where  F,  a  ship-carpenter,  contracted  with  C  to  build  him  a  sloop,  for 
which  C  was  to  pay  as  the  work  advanced,  and  furnish  all  the  materials 
and  labour  except  what  appertained  to  the  ship-carpenter's  work,  the 
vessel  being  in  F's  possession,  not  entirely  paid  for,  and  nearly  finish- 
ed, was  levied  on  by  the  landlord  of  the  ship-yard  as  a  distress  for  rent— 
Held,  that  F  hud  an  interest  in  the  vessel  to  the  extent  of  his  carpenter's 
•work  not  then  paid  for,  liable  to  seizure  and  sale  on  process  for  the  reco- 
very of  debts,  or  rent  due  by  him. 

One  joint  owner  of  a  chattel  cannot  maintain  replevin  against  another. 

APPEAL  from  Baltimore  County  Court.  Replevin  by  the 
appellee  agai;;sf.  the  appellants  for  a  sloop  or  vessel  on  the  stocks, 
taken  in  a  certain  place  called  The  Ship  Yard  of  the  plaintiff. 
The  defendants  avowed  the  taking,  &c.  for  two  years  rent  in 
arrear  of  the  lands  and  tenements  in  which,  &c.  under  a  de- 
mise thereof  made  by  the  defendants  to  the  plaintiff's  intestate, 
on  the  18th  of  August  1813,  at  the  yearly  rent  of  $500;  and  be- 
cause $1200  were  due  for  two  years,  &c.  well  avows  the  taking, 
&.c.  for  and  in  »he  name  of  a  distress  for  the  said  rent,  &c.  The 
plaintiff  pleaded  to  the  avowry — 1.  That  the  plaintiff's  inteja- 


OF  MAHYLAXD.  30§ 


v.   FLAWWAGAW.  —  1827. 

tate  did  not  hold  or  enjoy  the  said  place  in  which,  &c.  as  te- 
nant thereof  to  the  avowants  under  the  supposed  demise  there- 
of, &c.  2.  That  no  part  of  the  supposed  rent  was  or  is  in  ar- 
rcar,  &c.  Issue  tendered.  3.  That  the  said  place  in  which, 
&c.  was  parcel  of  a  close  which  the  plaintiff's  intestate  held  as 
tenant  to  the  avowants  a  long  time  before  the  time  when  the 
said  distress  was  made;  and  that  the  avowants,  a  long  time  be- 
fore the  time  at  which  the  said  distress  was  made,  and  before 
the  time  at  which  the  supposed  rent  for  which  the  said  distress 
was  and  is  pretended  to  have  been  made,  or  any  part  thereof, 
was  supposed  or  pretended  to  be  due,  entered  wrongfully  into 
the  said  close,  and  put  out  the  plaintiff's  intestate  from  a  great 
part  thereof,  &c.  4.  That  the  plaintiff's  intestate  was  a  ship- 
carpenter,  and  that  the  said  place,  in  which,  &c.  was  occupied 
by  him  as  a  common  and  public  ship-yard  for  the  building  and 
repairing  of  ships  and  other  vessels;  and  that  the  said  goods 
and  chattels  were  the  property  of  one  William  Carman,  and 
were  a  certain  sloop  or  vessel  upon  the  stocks  -and  unfinished, 
and  at  the  time  of  the  said  distress  was  in  the  possession  of  the 
plaintiff's  intestate  in  the  said  public  ship-yard,  in  the  ordinary 
course  of  his  trade  as  a  ship-carpenter,  for  the  purpose  of  be- 
ing built  and  finished,  and  for  no  other  purpose,  and  that  the 
plaintiff's  intestate  had  no  property  therein  except  as  bailee  as 
aforesaid  of  the  said  Carman,  &c.  The  defendants  joined  is- 
sues to  the  first  and  second  pleas.  To  the  Mm/  plea  they  re- 
plied, that  they  did  not,  before  the  time  at  which  the  distress 
was  made,  and  before  the  time  the  said  rent  was  due,  enter 
wrongfully  into  the  said  close,  and  put  out  the  plaintiff's  intes- 
tate, &c.  Issue  joined.  To  the  fourth  plea  they  replied, 
that  the  said  goods  and  chattels  were  not  the  property  of  Wil- 
liam Carman,  and  the  sloop  or  vessel  was  not,  at  the  time  of 
the  distress,  in  the  possession  of  the  plaintiff's  intestate,  in  his 
public  ship-yard,  in  the  ordinary  course  of  his  trade,  &c.  and 
and  that  he  had  property  therein.  Issue  joined. 

% 
1.  The  avowants,  at  the  trial,  gave  evidence,  that  in  the  year 

1S10,  William  Flannagan,  the  plaintiff's  intestate,  rented  of 
Thomas  M'Elderry,  under  whom  the  defendants  claim,  part 
nf  the  property,  for  the  rent  of  which  the  distress  was  laid  it| 


310  CASES  IN  THE  COURT  OF  APPEALS 

M'ELDEHRT  y.  FLANNAOAN. — 1827. 

this  cause,  at  the  rent  of  $500  per  annum,  and  afterwards  rent- 
ed another  part  of  said  property  at  the  additional  rent  of  $200 
per  annum;  and  that  the  property  thus  rented  extended  from, 
&c.  That  afterwards  Flannagan  on  the  18th  of  August  1811, 
rented  by  parol  of  the  defendants  the  whole  property  from  *3, 
round  to  N,  for  five  years,  for  $1200  per  annum.  That  after 
Flannagan  had  enjoyed  the  same  for  somewhat  more  than  one 
year,  the  avowants  having  received  a  proposition  for  the  rent- 
ing of  the  wharf  from  /to  M,  called  upon  Flannagan  and 
asked  him  if  he  would  give  up  a  part  of  said  wharf  for  a  pro- 
per consideration,  to  enable  them  to  make  a  lease  in  perpetuity 
to  Martin  F.  Maker;  that  Flannagan  in  July  1813,  agreed 
that  the  avowants  should  lease  to  Martin  F.  Maker  a  part  of 
«aid  property  called  the  New  Wharf  *  as  described  in  the  lease 
to  them;  and  that  he,  Flannagan,  should  rent  the  residue  in 
liis  possession  at  the  rate  of  $600  per  annum;  and  that  Flanna- 
gan  enjoyed  the  property  from  .#  to  /  for  two  years  next  after 
this  18th  of  August  1813,  and  until  the  time  of  the  distress 
which  was  laid  by  the  defendants.  And  the  avowants  further 
proved,  that  immediately  upon  said  agreement  the  avowants 
executed  the  following  lease,  to  said  Maker,  dated  the  29th 
of  July  1813,  for  all  that  lot,  piece  or  parcel  of  ground,  situ- 
ate, lying  and  being  in  the  city  of  Baltimore,  and  contained 
within  the  following  metes  and  bounds,  courses  and  distances, 
to  wit:  Beginning,  &c.  To  have  and  to  hold,  &c.  for  99  years, 
at  the  yearly  rent  of  $2125,  with  the  usual  covenants  to  pay 
the  rent,  and  liberty  to  re-enter  on  nonpayment,  &c.  Which 
lease  extends  from  /to  M;  and  that  Flannagan  having  some 
timber  on  said  part  so  leased  to  Maker,  he  removed  the  same 
from  off  said  lot  when  requested  so  to  do;  and  that  Flanna- 
gan was  present  and  saw  the  improvements  made  by  Smith 
and  Maker  on  the  whole  of  said  lot,  and  never  objected  to  the 
game.  That  Maker  paid  rent  to  the  avowants  for  his  part  of 
said  lot  up  to  the  time  of  laying  the  distress  in  this  case,  and 
was  never  forbidden  so  to  do  by  Flannagan.  And  that  after 
the  said  lease  was  made  by  the  avowants  to  Maker,  the  front  of 
which,  from  /to  M,  was  lying  on  the  navigable  waters  of  the 
Basin  of  Baltimore,  Maker  applied  to  the  port  wardens  of 
Baltimore  for  permission  tq,  drive  the  piles  from  H  to  Nt  which 


•P  MARYLAND.  311 


M'ELDEUBY  i'     FLAJI.VAOA*  — 1827. 


permission  was  granted  to  him  by  said  port  wardens,  and   that 
said  piles  were  not  driven  by  the  direction  or  authority  of  the 
avowants,  or  either  of  them;  and  that  during  all  the  holding  of 
flannagan  there  wasachained  moveaWe  floating  log  fixed  with 
one  end  to  //,  and  the  other  on    the  piles,  long  enough  to  per- 
mit vessels  and  timber  to  come  to  the  wharf  from  //to  1,  thi* 
log  serving  as  a  door  for  that  purpose,  and  that  there  never  was 
a  period  during  the  whole  of  said  renting   by  Flannagan,   in 
which  there"  was  not  ample  room  on  the  other  part  of  said    de- 
mised premises,  at  which  he  might  land  lumber  or  carry  in  ves- 
sels, those  being  the  only  two  purposes  for  which  said    whart 
was  requisite.     The  avowants  further  gave  in  evidence,  by  one 
Daniel  Conn)    a  competent  witness,   that   after  the  two  years 
rent  became  due,    which  are  in  controversy   in  this  cause,    he 
went  with  Mrs.  M-Elderry,  one  of  the  avowants,    and  one  of 
the  lessors  of  Flannagan,  to  Flannagan,  to  require  of  him 
the  payment  of  said  two  years  rent.     That  they  saw  Flanna- 
gan, who  objected  to  pay  it,  but  that  nothing  was  said  about  any 
other  rent  than  that  now  in  dispute.     The  plaintiff,  in  order  to 
support  the  third  issue  on  his  part,  gave  in  evidence,  that  Wil- 
liam Flannagan,    the  original   plaintiff  in  this   cause,   some 
time  prior  to  the  year  1810,  held  as  tenant  to  Thomas  M'El- 
derry,  deceased,  whose  heirs  at  law  the  defendants  are,    at  the 
annual  rent  of  §500,  a  portion  of  the  property   known   by  the 
pameof  M'Elderry's  Wharf,  beginning  for  the  water  front  of 
said  portion  of  property  at  the  point  marked  JL  upon  the  plot 
hereunto   annexed,  and  running  thence    southerly  to  B,   and 
thence  round  to  0;  that  one  Ludwig  Herring  occupied  under 
the  said  Thomas  M'Elderry,  and  as  his  tenant,   about  80  feet 
froKt,  or  thereabouts,  lying  immediately  north  of  the  point  .#; 
and  that  one  Salisbury  occupied  the  lower  end  of  the  wharf; 
that  at  that  time  the  wharf  extended  as  far  south  as  the  line  H 
I R;  and  that  there  was  also   an  unfinished   wharf  projecting 
southwardly  from  the  line  /  R,  about  60  feet;  that  Salisbury 
occupied  the  whole  lower  end  of  the  wharf,  including  the  said 
unfinished  wharf  or  projection,   and  the  water  right   in  front 
thereof,  and  of  the  line  HI.     That   by  a  contract   made   be- 
tween the  said  Thomas  M'-Elderry  and  Flannagan,  sometime 
ia  1810,  the  said  M'Elderry  demised  to  Flannagan  the  whole 


312  CASES  IN  THE  COURT  OF  APPEAL* 


M'ELDEHHT  v.   FLANNAOAN. — 1827. 


of  said  wharf  property,  which  had  been  rented  both  by  Flan- 
nagan  and  Salisbury, ai  the  annual  rent  of  §700.    That  subse- 
quent to  the  said  last  mentioned  demise  the  wharf  was  extend- 
ed to  its  present  limits,  as  laid  down  upon 'the  plot,  southward- 
ly from  the  termination  of  the  old  wharf  to  the  point  J/and 
JV.     That  after  the  said  extension,   the    defendants,    who  ha;l 
then  succeeded  to  the   property  upon   the  death    of  Thomav 
M'Elderrij)  whose  heirs  at  law  they  are,  demised  by  parol,  to 
Flannagan,  the  whole  of  said  wbarf  property  beginning  at  •# 
round  to  N,    at  the  annual  rent  of  $1200  for  five  years,  com- 
mencing on  the  18th  of  August    1811.      That   on  the  29th  of 
July  IS  13,  the  defendants  leased  to  Job  Smith,  and  others,  at 
the  annual  rent  of  $2125,    all  that  part  of  the  wharf  which   is 
south  ot  the  line  H I  JR.     That  Smith,  and  others,  entered  and 
look  possession  of  the  part  of  the  whari  so  leased,   and  drove 
piles  in  the  place  indicated  by  the  dotted  curved  line  from  // 
to  Nj  to  the  utter  destruction  of  that  part   of  the  wharf  called 
the  South  Cross  Wharf;  that  is  to  say,  that  part  of  the  wharf 
from  //to  /.     That  the  said  piles,   and    the   occupier   of  the 
West  front  wharf  running  southerly  from  /  to  M  by  the  said 
last  mentioned  lessees,  not  only   deprived  Flannagan   of  the 
use  of  all  that  part  of  the  property    south   of  the  line  ////?, 
but  rendered   the  south  front  wharf  from  //to  /of  no  use  or 
valus  to  Flaninagan.     That   the  said  south  front  wharf  had 
previously   been  of  great   importance    to  Flannagan.     That 
Flannagan  was  a  ship-carpenter,  and  that  the  said  south  front 
wharf  was,  on  account   of  its  situation  in  relation    to  the  part, 
particularly  adapted  for  the  purpose  of  heaving  down  vessels, 
and  was  employed  by  Flannagan  for  that  purpose;  one  large 
brig  was  actually  hove  down  at  the  said  south  front  wharf.   Af- 
ter the  said  lease  from  the  defendants  to  Smith,  and  others,  no 
vessel  could  be  hove  down  at  said  south  front  whari,  as  well  on 
account  of  the  driving  of  the  piles  aforesaid,  as  of  the  occupa- 
tion of  the  west  front  wharf,  running  southwardly  from  /,   by 
the  said  last  mentioned  lessees.     The  plaintiff  further  proved 
by  William  Carman,   a  witness  sworn  in  the  cause,  that  in 
the  month  of  March  1813,  the  defendants  leased  to  the  witness 
100  feet  of  ground  for  99  years,  renewable  for  ever,  at  the  rate 
of  five  dollars  per  foot  per  annum,  by  deed  dated  the  Sth  o£ 


OF  MARYLAND.  313 


r     FLAS.VAKAN  — 


March  1813,  and  which  was  executed  by  Elizabeth*  John  and 
Thomas  M-EUerry,  in  virtue  of  an  act  of  assembly  appt  int- 
ing  them  trustees,  &c.  to  William  Carman,  James  Mosher  and 
Robert  Carey  Long,  in  the  proportion  of  one  undivided  half 
to  Carman,  one  undivided  fourth  to  Mosher,  and  the  remain- 
ing undivided  fourth  to  Long,  &c.  And  that  in  pursuance  of, 
and  by  authority  of  said  lease,  the  witness  entered  into  the 
said  100  feet  of  ground,  and  began  to  remove  some  lumber  and 
timber  belonging  to  Flannagan  from  off  the  same,  and  to  dig 
the  foundation  for  an  office.  That  while  so  removing  said  tim- 
ber and  lumber,  and  digging  said  foundation,  Flannagan  came 
to  witness  and  told  him  he  was  encroaching  on  the  grounds 
leased  to  him,  Flannagan,  by  the  defendants.  That  witness 
replied  that  he  did  not  know  how  that  was;  that  he  had  a 
lease  of  the  ground,  and  that  he,  Flannagan.,  would  have  to 
settle  it  with  the  defendants.  That  the  witness  proceeded  to 
remove,  and  did  remove  the  lumber  of  Flannagan  from  off 
the  ground,  and  dug  the  foundation,  and  built  a  brick  office 
thereon,  and  enclosed  the  whole  of  said  100  feet  of  ground 
by  a  fence.  The  plaintiff  further  proved,  that  16  feet  of  the 
100  feet  leased  by  the  defendants  to  Carman,  (from  which 
16  feet  Carman  removed  the  lumber  and  on  which  he 
built  the  office  as  before  stated,)  was  part  of  the  ground  origi- 
nally leased  by  Flannagan  from  the  defendants;  and  that 
Carman  has  continued  to  hold  the  said  16  feet  under  and  by 
virtue  of  the  authority  of  his  lease  aforesaid,  ever  since,  and 
held  the  same  as  aforesaid  during  the  time  in  which  the  rent 
in  this  case  is  alleged  to  have  accrued.  The  avowants  then 
proved,  that  about  the  time  of  the  lease  to  Carman,  he  pro- 
ceeded to  erect  a  brick  shop  on  said  16  feet,  and  proceeded  to 
remove  some  of  Flannagan's  lumber  which  was  lying  there- 
on; that  Flannagan  came  and  at  first  objected  to  it,  but  that 
Carman  told  him  he  had  leased  of  M-Elderry,  and  then  pro- 
ceeded to  remove  the  lumber,  Flannagan  standing  by  and  see- 
ing its  removal  without  making  any  further  objections;  and 
that  Flannagan  never  did  object  afterwards  to  the  erection  of 
said  office,  until  the  quarrel  arose  in  1816,  and  he  sent  Car- 
man notice  that  he  should  consider  him  his  tenant.  The  plain- 
tiff then  moved  the  court  to  direct  the  jury,  that  if  they  shall 
VOL.  i.  40 


314       OAStS  IN  THE  COURT  OF  APPEALS 

M'ELDERBT  v.   FLANNAGAN  — 1827. 

believe  the  lease  from  the  defendants  to  William  Carman,  as 
given  in  evidence,  included  a  part  of  the  ground  to  which 
Flannagan  was  entitled  under  his  lease  from  the  defendants 
of  the  18th  of  August  1811,  and  that  Carman,  by  virtue  of 
his  lease,  entered  upon  such  part,  and  thereby  excluded  Flan- 
nagan from  the  possession  thereof,  without  bis  consent  and 
against  his  will,  then  such  entry  and  exclusion  suspended  the 
legal  right  ot  the  defendants  to  demand  rent  from  Flnnnagan 
for  the  whole  or  any  part  of  the  property  so  leased  to  him,  as 
long  as  Flannagan  was  deprived  of  the  possession  of  that  part 
so  leased  and  occupied  by  Carman,  and  included  in  the  leasa 
from  the  defendants  to  Flannagan  as  aforesaid.  Which  opini- 
on and  direction  the  Court,  [Jlrcher,  Ch.  J.]  gave.  The  avow- 
ants  excepted. 

2.  The  preceding  evidence  having  been  given,  the  avowants 
made  the  three  following  prayers  to  the  court:  1st.  If  the  jury 
should  believe  from  the  evidence,  that  on  the  18th  of  August 
1813,  the  date  of  the  lease  from  the  ayowants  to  Flannagan, 
upon  which  was  reserved  the  rent  of  §600,  Flannagan  knew 
that  Carman  claimed,  and  had  taken  possession  of,  under  his 
lease  from  the  avowants,  of  the  16  feet  lying  between  the  lines 
on  the  plot  from  «/?  to,  &c.  that  then  they  may  presume  that 
said  16  feet  were  not  intended  to  be  included  in  the  lease  afore- 
said to  Flannagan.  Which  direction  the  court  refused  to 
give;  but  informed  the  jury  that  they  should  look  to  all  the 
facts  in  evidence,  and  from  them  determine  the  extent  and  li- 
mits of  the  lease  to  the  plaintiff.  2d.  If  the  jury  believe  from, 
the  evidence,  that  after  Carman  took  possession  of  the  16  feet 
marked  on  the  plot,  Flannagan  did  not  apply  to  the  avow- 
ants in  relation  to  said  possession,  but  afterwards  gave  Carman 
notice  to  pay  the  rent  of  said  16  feet  to  him,  Flannagan,  that 
then  Flannagan  elected  to  take  Carman  as  his  tenant,  and 
that  his  so  doing  prevents  said  possession  from  amounting  to  an 
eviction  of  Flannagan  from  the  property  held  by  him  from 
the  avowants.  3d.  Upon  all  the  evidence  and  pleadings  in. 
this  cause,  the  avowants  prayed  the  court,  to  instruct  the  jury^ 
that  they  are  entitled  to  recover.  Which  direction  the  court 
refused  to  give.  The  avowants  excepted. 


OP  MARYLAND. 


M'ELDERRT  v.  FLANNAGAN. — 1827. 


3.  The  plaintiff,  in  order  to  support  the  fourth  issue  on  his 
part,    gave  in  evidence  that  William  Carman,  mentioned   in 
the  fourth  plea  of  him  the  plaintiff,   agreed   with    William 
Fiannagan,  the  original  plaintiff  in  this  cause,  that  he,  Flan" 
nagan,  should  build  for  him,  Carman,  a  sloop,  for  which  Car' 
man  was  to  pay  as  the  work  advanced.     That  Flannagan  ac- 
cordingly built  a  sloop  for  Carman,  and  that  Carman  paid  to 
Flannagan  money  on  account  of  the  said  sloop.     That  on  the 
27th  of  February  1816,   the  captain  employed  by  Carman  to 
command  said  sloop,  commenced  superintending  the  said  sloop, 
and  did  actually  superintend  and  work  on  board  her,  and   that 
his  wages  commenced  from  that  day,  she  then  being  upon   the 
stocks.     That  the  said  sloop  was  intended  to  be  launched  upon 
the  1st  of  March  1816,  about  12  o'clock  at  noon;  that  about 
10  o'clock,  A.  M.  on  the  said    1st  of  March,  the  defendants 
distrained  the  said  sloop;  that  in  the  course  of  the  day  she  was 
replevied,  and  was  actually  launched  about  5  o'clock,  P.  M.  of 
the  same  day.     That  previous  to  the  distress,   Carman  had 
paid  to  Flannagan,  for  and  on  account  of  the  said  sloop,  and 
in  pursuance  of  the  contract  for  building  her,  the  sum  of  §1,450. 
That  at  the  time  of  the  distress  the  mast  of  the  said  sloop  was 
in  her,  and  she  was  as  much. rigged  as  she  could  be  previous  10 
launching.     That  the  joiners'  work  was  all  done;  that  she  was 
painted   and   varnished.     That  there  was  much   blacksmiths' 
work  done   upon  her.     That  Flannagan  had  nothing  to  do 
with  the  rigging,  joiners'  work,   blacksmiths'  work,   painting 
or  varnishing  the  said  sloop;  but  that  the  same  were  to  be  paid 
for  by   Carman.     That  there  were  other  workmanship  and 
materials  employed  in  and  about  the  s;iid  sloop  before  the  said 
distress,  for  which  Carman  had  paid,  or  was  responsible,   and 
which  were  finished  by  persons  other  than   Flannagan,   and 
with  which  Flannagan  had   nothing  to  do.     That  Carman 
had   paid,  and   was  responsible  for  the  sum  of  $710,  and  up- 
wards, for  the  workmanship  and  materials  furnished   and  em- 
ployed in  and  about  the  said  sloop,  by  persons  other  than  Flan- 
nagan,  and  with  which  he,  Flannagan,  had  nothing  to  do. 
That   Flannagun  was  a  ship-carpenter;  and  that  the  place 
tvhere  the  distress  was  made  was  his  ship-yard.     The  defen- 
dants, to  support  the  said  issue  on  their  part,  gave  in  evindence, 


816  CASES  IX  THE  COURT  OF  APPEALS 

M'EniERRY  v.   FLASNAGAN. — 1827. 

that  there  was  due  to  Flannagan,  on  account  of  the  said  sloop, 
the  sum  of  $333  66.  That  the  contract  between  Carman  and 
Flannagan  was  that  Flannagan  should  furnish  all  the  ma- 
terials for  his  work  on  said  vessel,  and  should  finish. the  said 
sloop  to  a  cleat.  That  the  meaning  of  said  contract,  as  under- 
stood by  merchants  and  ship-carpenters,  is  that  the  whole  of 
the  ship-carpenter's  work  shall  be  done;  that  it  is  part  of  the 
ship-carpenter's  work  to  launch  the  vessel,  which  is  a  difficult 
and  dangerous  operation,  and  until  it  is  over,  vessels  are  always 
considered  at  the  risk  of  the  builder.  That  said  vessel  was  only 
measured,  and  her  tonnage  ascertained,  after  she  was  launched; 
and  that  said  distress  was  levied  whilst  said  vessel  was  on  the 
Stocks,  and  before  the  carpenter's  certificate  was  given  for  her; 
and  it  is  quite  usual  for  captains  of  vessels  to  superintend  the 
building  and  equipping  of  vessels  whilst  on  the  stocks.  The 
defendants  then  prayed  the  court,  that  upon  the  foregoing  evi- 
dence, the  plaintiff  was  not  entitled  to  recover.  Which  opinion 
the  court  refused  to  give.  The  avowants  excepted.  Verdict 
and  judgment  for  the  plaintiff;  and  the  defendants  (the  avow- 
ants,) appealed  to  this  court. 

The  cause  was  argued  at  the  last  June  term  before  BUCHA- 
NAN, Ch.  J.  and  STEPHEN,  and  DORSEY,  J. 

R.  Johnson,  for  the  Appellants,  contended  upon  the  first 
bill  of  exceptions,  1.  That  admitting  Carman,  under  his  lease 
of  the  8th  of  March  1813,  took  possession  of  16  feet  of  the 
whole  ground  originally  leased  by  the  appellants  to  Flanna- 
gan, such  possession  did  not  in  law  amount  to  an  eviction  of 
Flannagan  by  the  appellants,  of  those  16  feet,  so  as  to  extin- 
guish their  right  to  the  rent. 

2.  By  the  evidence,  Carman's  possession  under  his  lease  of 
the  8th  of  March  1813,  of  the  16  feet,  was  before  the  lease 
Stated  in  the  avowry  from  the  appellants  to  Flannagan  of  the 
18th  of  August  1813,  and  did  not  interfere  with  Flannagan's 
enjoyment  under  his  last  lease,  of  any  part  of  the  property  em- 
braced by  it;  and,  therefore,  did   not  operate  to  suspend  or  ex- 
tinguish the  appellants'  right  to  the  reserved  rent. 

3.  Upon  the  second  bill  of  exceptions  he  contended,  that 
the  notification  by  Flannagan  to  Carman,  after  the  date  of 


OF  MARYLAND.  317 

M'F.LDKHBT  v.   FLANJCAGAN. — 1827. 

Carman's  lease  from  the  appellants,  operated  to  make  Carman 
an  under-tenant  of  Flannagan,  and  to  prevent  that  lease  from 
having  the  effect  of  evicling  Flannagan  from  any  part  of  the 
property  leased  to  him  by  the  appellants,  so  as  to  suspend  the 
right  of  the  appellants  to  demand,  under  the  last  lease,  their 
rent  from  Flannagan.  Upon  the  first  and  third  prayers  in 
this  bill  of  exceptions,  no  question  will  be  raised. 

4.  On  the  third  bill  of  exceptions,  he  contended,  that  the 
form  of  this  exception  admits  the  lease  stated  in  the  avowry, 
and  that  the  rent  was  due  at  the  date  of  the  distress,  &c.  1. 
That  as  Flannagan  continued  in  possession  of  the  property 
distrained  at  the  time  of  the  distress,  he  had  such  an  estate  in 
the  property  as  rendered  it  liable  to  distress.  2.  That  if  he 
had  not  such  an  estate,  it  was  because  he  had  parted  with  his 
possession,  in  which  event  he  had  neither  a  general  nor  special 
property  in  the  vessel  distrained,  and  could  not,  therefore,  as  is 
the  prayer  in  this  exception,  maintain  this  action  for  the  vessel. 

On  the  first  and  second  points,  he  cited  Clayton  vs  Blakey, 
8  T.  R.  3.  The  act  of  1766,  ch.  14.  Laidler  vs  Young's 
Lessee,  2  Harr.  $•  Johns.  69.  4  Bac.  tfb.  tit.  Leases,  &c.  (S 
3,)  212. 

On  the  fourth  point,  he  cited  3  Blk.  Com.  7.  Zagary  vs 
Furnell,  2  Campb.  240.  M' Donald  vs  Hewett,15  Johns. 
Rep.  349.  Allegre  vs  Maryland  Insurance  Company,  6 
Harr.  4'  Johns.  403.  Mucklow  vs  Mangles,  1  Taunt.  318. 

Wirt,  (Attorney  General  of  U.  S.)  Meredith  and  Evans, 
for  the  Appellee.  Upon  the  first  bill  of  exceptions  they  con- 
tended, that  an  eviction  of  part  of  the  land  demised  suspended 
the  whole  rent.  3  Bac.  M.  tit.  Extinguishment,  (A)  105.  6 
Bac.  M.  tit.  Rent,  49.  Co.  Litt.  148.  a.  Gilb.  on  Rents, 
178.  Eddowes  vs  Niell,  4  Dull.  Rep.  134.  The  entry  of  Car- 
man was  an  eviction  of  Flannagan;  and  the  act  of  Carman, 
\vasthe  act  of  the  appellants,  his  lessors.  Co.  Litt.  249,  (note.) 
217,  (note  3.)  Freeman  vs  Barnes,  1  Vent.  80.  The  lease 
to  Flannagan  was  not  a  void  contract  under  the  statute  of 
frauds,  or  the  act  of  1766,  ch.  14.  A  parol  lease  from  year  to 
year  for  seven  years,  is  not  a  lease  for  a  year  certain,  but  for 
seven  years.  Rob.  on  Frauds,  242,  243,  (note.)  Legg  v$ 


-318  CASES  IN  THE  COUIIT  OF  APPEALS 

M'EtDERKT  v.  FLASNABAS  — 1827. 

Strudwick,  2  Salk.  414.  Birch  vs  Wright,  1  T.  R.  378,  381, 
per  Buller,  J.  A  new  lease  of  a  part  is  no  surrender  of  an 
old  lease.  A  surrender  of  part  is  no  surrender  of  the  whole. 
6  Com.  Dig.  tit.  Surrender,  (I  2,)  320.  Rob.  on  Frauds, 
258,259,  261.  4  Bac.  Jib.  tit.  Leases,  217.  3  Bac  Jib.  105. 
It  is  not  a  new  lease  of  any  part.  The  avowry  does  not  state 
what  part  was  demised.  The  first  and  second  issues  were 
found  for  the  plaintiff  without  any  direction  from  the  court  to 
the  jury.  Rob.  on  Frauds,  244.  Doe  vs  Bell,  6  T.  R.  471. 
As  to  the  apportionment  of  rent — Co.  Lilt.  148.  Com.  Dig. 
tit.  Suspension,  (Ei.) 

On  the  third  bill  of  exceptions.  A  landlord  has  a  right  to 
distrain  any  property  on  the  premises,  excepting  that  placed 
there  for  public  convenience,  and  the  benefit  of  trade  and  com- 
merce. Oilman  vs  Elton,  7  Serg.  fy  Low.  355  Here  the 
property  of  sundry  persons  was  taken  as  the  property  of  one 
person.  The  vessel  taken  was  the  common  property  of  diffe- 
rent mechanics — if  she  was  not  the  property  wholly  of  Car- 
man. He  was  responsible  to  the  mechanics.  Take  him  as 
having  a  joint  property  with  Flannagan,  the  distress  was  im- 
proper. Co.  Lift.  47.  But  the  whole  property  in  the  vessel 
was  in  Carman.  Woods  vs  Russell,  1  Serg.  8?  Low.  310.  A 
mere  right  of  possession  is  sufficient  to  maintain  replevin. 
Smith  vs  Williamson,  1  Harr.  Sf  Johns.  147. 

Taney,  in  reply.  Three  questions  arise  under  the  third  bill 
of  exceptions  on  the  fourth  issue.  1.  Was  the  right  of  pro- 
perty in  the  vessel  in  Flannagan  or  Carman?  2.  If  in  Car- 
man, was  she  liable  to  distress?  3.  If  not  liable,  had  the  plain- 
tiff such  a  property  in  her  as  could  support  replevin? 

1.  The  contract  was  for  building  the  vessel.  Carman  had  the 
right  of  action  to  claim  the  property,  but  the  right  continued  to 
reside  in  Flannagan.  A  right  under  a  contract,  and  a  right  of 
property,  are  two  different  things.  If  any  thing  is  to  be  done 
to  the  thing  contracted  for,  it  is  the  right  of  the  vendor,  and 
not  the  right  of  the  vendee.  Until  the  vessel  was  launched 
she  was  the  property  of  Flannagan — not  as  bailee.  The  risk 
was  Flannagan's  if  the  vessel  was  destroyed  in  launching,  &c. 
M' Donald  vs  Hewett,  15  Johns.  Rep.  349.  Woods  vs  Rus- 


OF  MARYLAND.  319 


M'ELDERHT  v.  FLANNAWAX. — 1827. 


sell,  7  Serg.  $•  Low.  310.  A  person  mixing  his  property  with 
another's  is  to  abide  the  consequences  resulting  therefrom.  It 
cannot  exempt  the  property  from  distress  for  rent. 

2.  The  property  was  not  privileged  from  distress.     Oilman 
vs  Elton,  7  Serg.  Sf  Low.  357. 

3.  The  prayer  in  the  third  bill  of  exceptions  went  as  to  the- 
fourth  issue,   and  was  intended  to  apply  to  that  issue  only, 
although  it  was  general. 

On  the  first  bill  of  exceptions.     The  eviction  is  not  under 
the  lease  to  Maher,  but  under  the  lease  to  Carman.     The 
other   leases  have   nothing  to  do  with  the  case.     The  lease 
to  Flannagan  commenced  in   August  1811.     In  July  1813, 
Flannagan   agreed  to  the  lease   to   Maker.      The    16    feet 
were  not  then  in  his  possession.      The   new   lease   by   parol 
was   in   1813,  for  a  rent  of  $600  per  annum.     An  evictiou 
{suspends  the  rent  from  the   time  of  the  eviction.      By  the 
Statute  of  Frauds  all  leases  for  more  than  three  years  were 
leases  at  will.    (See  the  statute  in  1  Bac.  Jib.  tit.  Agreement, 
(C)  115.)     If  the  lease  is  for  five  years,  that  would  be  a  tenan- 
cy from  year  to  year,  so  long  as  the  parties  agreed.     This  is 
the  case  in  England.     But  our  act  of  1766,  ch.  14,   declares 
that  leases  for  above  seven  years  shall  be  recorded;   but  it  left 
all  leases  for  seven  years,  and  under,  as  they  stood  before,  and 
did  not  repeal  the  law  as  to  such  leases.     The  effect  of  a  lease 
from  year  to  year,  is  a  lease  for  a  single  year.     Looking  back 
for  several  years  they  are  united,  and  it  is  a  continuing  contract; 
but  looking  forward  it  is  only  a  lease  for  a  year.     If  a  lease  is 
for  three  years,  and  the  term  has  expired,  the  lessor  could  not 
distrain  at  common  law.     Rob.  on  Frauds,  241.     The  evic- 
tion by  Carman  was  on  the  13th  of  March  1813.     What  was 
Flannagan 's  interest  at  that  time?     His  right  then  expired  in 
August  1813.     The  agreement  between  him  and  the  appellants 
was  a  new  lease  after  August  1813,  so  that  no  rent   could   be 
exacted  which  fell   due  in  August   1813,  because  of  the  evic- 
tion.    But  that  eviction  could  not  operate  upon  the  new  lease, 
which   commenced  in   August   1813,   at  the  expiration  of  the 
former  lease.     When  he  was  evicted  he  had  no  interest.     He 
got  a  new  interest  under  the  new  lease.     Hob.  on  Frauds,  242, 
(and  note.J     Here  it  cannot  be  presumed  that  the  16  feet 


329        CASES  IN  THE  COURT  OF  APPEALS 

M'ELDERRT  V.   FtANJfAGAIf. — 1827. 

were  included  in  the  new  lease,  because  they  had  been  leased 
to  Carman.  An  agreement  to  continue  must  be  the  act  of 
both  parties.  Under  the  new  lease  Flannagan  never  was  in 
possession,  nor  was  to  be,  of  the  16  feet  leased  to  Carman. 
The  presumption  of  a  continuing  lease  is  where  the  whole  pro- 
perty remains  in  the  possession  of  the  tenant.  The  lease  to 
Carman  for  the  16  feet  was  notice  to  Flannagan.  Accept- 
ance of  a  new  lease  for  a  part,  is  a  surrender  of  the  old  lease 
as  to  all  except  that  part  4  Bac.  tfb.  212,  217. 

Curia  adv.  vult. 

DORSEY,  3.  at  this  term,  delivered  the  opinion  of  the  court. 
The  correctness  of  the  opinion  given  by  the  county  court  on 
the  first  bill  of  exceptions,  depends  entirely  On  the  existence 
of  a  fact,  of  which,  to  view  it  in  the  aspect  most  favourable  to 
^he  appellee,  there  is  considerable  doubt.  By  the  demise  of 
the  18th  of  August  1811,  Flannagan  held  of  the  appellants, 
by  parol,  for  five  years,  the  whole  of  the  wharf  property  al- 
luded to  in  any  part  of  the  proceedings  in  this  cause.  On  the 
8th  of  March  1813,  the  appellants  leased  to  William  Carman 
a  part  of  it  fronting  100  feet  on  the  water;  and  on  the  29th  of 
the  succeeding  July,  by  the  consent  of  Flannagan,  made  a 
lease  of  that  part  of  said  wharf  called  The.  New  Wharf,  to 
Martin  F.  Maker,  for  99  years  renewable  forever;  and  ac- 
cording to  the  testimony  of  the  appellants,  as  stated  in  this  bill 
of  exceptions,  he,  Flannagan,  agreed  to  rent  the  residue  of 
said  wharf  in  his  possession,  at  the  rate  of  $600  per  annum. 
Whether,  in  the  opinion  of  the  court,  according  to  the  weight 
of  testimony,  this  contract  of  July  1813,  is  to  be  considered  as 
a  surrender  of  all  those  parts  of  the  wharf  only  which  were 
leased  to  Maher,  and  an  apportionment  of  the  rent  for  the  re- 
sidue, or  as  a  surrender  of  the  whole  wharf,  and  an  acceptance 
by  Flannagan  of  a  new  lease  of  all  that  part  of  the  wharf  not 
included  in  Maker's  lease,  is  wholly  immaterial  in  deciding  on 
the  prayer  made  to  the  county  court.  Before  the  court  could 
legally  give  the  instruction  prayed  for  by  the  appellee,  they 
must  admit  the  truth  of  the  testimony  offered  by  the  appellants, 
and  of  the  testimony  given  by  the  appellee,  which  may  operate 
in  the  appellants'  favour,  and  the  existence  of  all  material  facts 


•I*  MARYLAND*  321 


v.   FLANNAGAN — 1827. 


reasonably  deducible  therefrom,  even  though  contradicted  in 
every  particular  by  the  testimony  on  the  part  of  the  appellee. 
Upon  rto  other  principle  can  the  case  be  withdrawn  from  the 
Consideration  of  the  jury,  who  alone  are  competent  to  decide 
on  facts  of  which  contradictory  evidence  inay  be  offered.  The 
agreement  of  the  29th  of  July  1813,  us  proved  by  the  appel- 
lants, is  therefore  a  concession  In  th/j  cause*  If  there  were  no 
proof  to  show  that  the  possession  of  Carman's  lot  was  out  of 
Flannagan  at  the  time  of  that  agreement,  then  were  the  court 
below  justified  in  the  opinion  they  hava  given.  But  if  there 
be  evidence  from  which  a  fational  mind  could  infer  such  a"  fact, 
the  county  court  have  invaded  the  province  o<*  the  jury*  and 
their  judgment  must  be  reversed.  The  proof  on  the  part  of 
the  appellee,  is  that  Carman,  in  pursuance  of  his  lease,  en- 
tered upon  his  100  feet  of  ground,  erected  a  shop  on  16  feet 
thereof,  and  enclosed  the  whole  with  a  fence.  The  appellant* 
prove  that  this  was  done  about  the  time  of  the  lease  to  Car- 
man. When  this  testimony  is  coupled  with  the  agreement  of 
the  29th  of  July  1813,  in  which  the  word  possession  is  usedj 
for  no  other  purpose  that  is  discernible,  unless  it  be  to  exclude 
from  the  demise  to  Flannagan  the  lot  leased  to  Carman^  can 
it  be  said  that  there  is  no  evidence  admissible  to  the  jury  to 
show  possession  in  Carman  at  the  time  of  such  agreement? 
He  who  would  refer  to  the  case  of  Ludlow  vs  Ogdon,  2  WTieat. 
178,  (which  however  it  must  be  admitted  extends  the  power 
of  a  jury  to  the  utmost  verge  of  rationality,)  would  not  hesitate 
in  returning  a  negative  answer  to  this  question. 

The  second  bill  of  exceptions  presents  three  separate  pray- 
ers on  the  part  of  the  appellants,  all  of  which  were  refused  by 
the  court.  In  the  decision  on  the  first  and  third,  the  counsel 
of  the  appellee  have  stated  their  entire  acquiescence;  and  of 
that  made  on  the  second  thefe  is  as  little  cause  of  complaint. 
Whether  there  was  an  eviction  or  not  depends  upon  all  the  cir- 
cumstances of  the  case,  and  not  upon  the  two  isolated  facts 
which  have  been  selected  as  the  basis  of  the  prayer.  Flanna- 
gan  was  not  bound  to  resist  by  force  the  acts  of  Carman  itt 
taking  possession  of  the  lot  demised  to  him,  and  his  notifying 
Carman,  after  the  distress  was  levied,  that  he  should  consider 
liim  his  tenant,  did  not  make  him  so,  or  release  him  from  his 
VOL.  IT  41 


CASES  IN  THE  COURT  OF  APPEALS 


1827. 


covenants  to  the  appellants;  and  upon  no  principle  of  law  or 
justice  should  an  act  so  nugatory  and  inoperative  be  construed 
to  divest  Flannagan  of  an  unquestionable  legal  right. 

The  only  question  designed  to  be  raised  by  the  third  bill  of 
exceptions  is,  whether  Flannagan  had  such  an  interest  in  the 
sloop,  as  could  be  the  subject  of  a  distress  for  rent.  By  the 
refusal  to  give  the  instruction  demanded  by  the  appellants,  the 
court  below  have  determined,  that  such  a  distress  was  unlaw- 
ful; and  from  this  decision  an  appeal  has  been  wisely  taken. 
Even  let  it  be  conceded  that  all  the  materials  and  work  of  the 
blacksmith,  the  ship-joiner,  the  painter  and  rigger,  were  the 
general  property  of  Carman,  and  that  he  had  a  like  interest 
in  the  materials  and  workmanship  of  the  carpenter  to  the  ex- 
tent of  his  payments  made  on  the  sloop,  and  also  that  the  ship- 
yard of  Flannagan,  for  reasons  of  public  policy,  and  for  the 
encouragement  of  commerce,  protects  from  distress  the  pro- 
perty of  third  persons,  placed  there  in  the  ordinary  course  of 
business;  yet  is  it  not  a  proposition  equally  undeniable,  that 
Flannagan  had  the  same  property  in  his  materials  and  labour 
on  the  sloop,  to  the  extent  ot  the  balance  due  to  him  therefor? 
The  privileges  of  his  ship-yard  cast  around  his  interest  no  pro- 
tection, and  it  remained  liable  to  distress  in  the  same  manner 
that  his  separate  property  would  have  been.  Joint  property, 
in  the  possession  of  one  of  the  owners,  may  be  seized  and  sold 
under  a  fieri  facias  against  him  only,  and  the  purchaser's  right 
would  be  complete  to  'he  extent  of  the  interest  of  him  against 
whom  the  execution  issued  ;  and  he  might  hold  possession  accord- 
ingly. In  the  present  case,  if  under  the  Stat.  of  17  Car.  II, 
ch.  7,  the  jury  be  required  by  the  appellants  to  ascertain  the 
amount  of  property  distrained,  they  must  have  limited  its  value 
to  the  balance  due  from  Carman  to  Flannagan;  and  if  de- 
clining to  proceed  under  this  statute,  a  general  judgment  for  a 
return  had  been  rendered,  Carman,  by  application  to  a  court 
of  equity,  would  have  recovered  the  sloop,  upon  his  paying  to 
the  purchaser  the  balance  due  for  it  according  to  his  contract 

Flannagan's  interest  being  adjudged  distrainable,  his  right 
to  maintain  replevin  as  the  bailee  of  Carman,  so  much  relied 
on  in  the  argument,  necessarily  falls  to  the  ground  —  one  joint 
owner  of  a  chattel  being  incompetent  to  maintain  replevin 


0*  MARYLAND.  323 


f.  FLASNAGAN. — 1827. 


.against  another.  And  upon  no  principle  can  the  rights  of  the 
bailee,  in  such  a  case,  be  extended  beyond  those  of  his  princi- 
pal. 

The  case  of  Woods  vs  Russell,  5  Barn.  $>'  Aid.  942,  urged 
by  the  appellee's  counsel  as  conclusive  upon  the  case  before  us, 
is  clearly  distinguishable  from  it.  Here  no  act  was  done  by 
Flannagan  which  could  be  tortured  into  an  admission  thai 
the  entire  property  in  the  sloop  should  pass  to  Flannagan, 
but  upon  the  payment  of  the  whole  price  stipulated  to  be  paid 
for  her.  There  the  ship-builder  was  privy  to  the  chartering 
of  the  ship  by  him  for  whom  she  was  built,  assented  to  the 
measurement  thereof,  and  gave  the  usual  certificate  of  build- 
ing, &c.  to  authorise  the  granting  to  him  a  register,  which  is- 
sued accordingly,  and  could  only  have  been  ohtained  by  mak- 
ing an  affidavit  of  ownership.  These  facts  create  an  irresisti- 
ble implication,  that  the  builder  consented  that  the  general  pro- 
perty in  the  ship  should  be  considered  from  that  time  as  being 
in  the  defendant.  And  in  that  light  were  they  viewed  by  the 
court. 

The  rights  of  the  party,  for  whom  any  article  is  built  agree- 
ably to  contract,  is  very  strongly  marked  out  in  Mucklow  vs 
Shingles,  1  Taunt.  SIS.  Royland  contracted  to  build  a 
barge  for  Pocock,  and  received  from  time  to  time,  as  the  work 
proceeded,  £190,  the  value  of  the  barge.  When  it  was  nearly 
completed,  Pocock's  name  wras  painted  on  the  stern.  Royland 
became  bankrupt  before  its  completion.  The  court  held  that 
the  barge  was  not  the  property  of  Pocock  until  finished;  that  it 
was  a  quite  different  thing  from  a  contract  of  sale.  And  Law- 
rence, Justice,  stated  that  no  property  vested,  till  the  thing  is 
finished  and  delivered.  Such  a  general  rule,  though  applica- 
ble to  the  case  in  which  it  was  pronounced,  would  be  produc- 
tive of  much  inconvenience,  and  great  injustice,  if  applied  to 
the  facts  before  us.  There  the  contract  was  simply  to  build 
the  barge.  No  agreement  to  pay  the  stipulated  price  as  the 
work  proceeded — nothing  to  specify  the  particular  barge  to 
which  the  contract  or  money  paid  should  attach— nothing 
by  which  its  identify  could  be  ascertained.  The  delive- 
ry of  any  other  barge  would  have  been  strictly  a  compli- 
ance with  the  contract.  Not  so  here;  the  sloop  was  to  be 


324  CASES  IN  THE  COURT  OP  APPEALS 

Umow  BANK  OF  MAKTIAXD  v.  RiDBELT.-*-1827. 

paid  for  "as  the  work  advanced,"  all  the  materials  and  labour, 
ex  -r'pt.  what  appertained  to  the  ship-carpenter 's  work,  were  to 
be  furnished  and  paid  for  by  Carman.  The  contract,  there- 
fore, attached  on  and  identified  that  particular  sloop;  the  de- 
livery of  no  other  would  have  been  by  Flannagan  a  perform- 
ance of  his  contract.  Carman  had,  therefore,  at  the  time  of 
the  distress,  a  general  property  in  the  sloop  equivalent  to  the 
money  paid,  and  labour  and  materials  by  him  found  on  account 
thereof,  but  no  further.  The  residue  of  the  property  therein 
remained  in  Flannagan,  liable  to  seizure  and  sale,  on  process 
for  the  recovery  of  debts  or  rent  due  by  him;  and  by  no  pro- 
ceeding in  a  court  of  law  could  Carman  recover  possession  of 
the  sloop  until  payment,  or  tender  of  payment,  of  the  whole 
price  specified  by  the  terms  o5  his  contract. 

The  opinion  given  by  the  county  court  on  the  second  bill  of 
exceptions  is  assented  to;  but  that  delivered  by  them  on  the 
Jirst  and  third  bills  of  exceptions  is  dissented  from. 

JUDGMENT  REVERSED,  AND  PROCEDENDO  AWARDED 


THE  UNION  BANK  OP  MARYLAND  vs.  RIDGELY. — June,  1827. 

A  plea  of  special  non  est  factum  is  a  general  isaue  plea,  and  like  other  gene- 
ral issue  pleas  need  not  be  pleaded  before  the  rule  day,  but  may  be  re- 
ceived when  the  cause  Is  called  up  fov  trial. 

When  an  amendment  of  the  pleadings  is  made  at  the  trial  under  the  act  of 
!•  09,  eh.  153,  s.  1,  time  is  to  be  given  during  the  term,  to  the  adverse 
party  to  prepare  to  support  his  case;  yet  the  cause  is  not,  therefore,  t» 
be  continued,  unless  the  court  shall  be  satisfied  that  a  continuance  is  ne- 
cessary. 

Whatever  apparent  inconsistency  there  may  be  between  the  pleas  of  gene* 
ral  performance  and  non  est  factum,  it  is  the  settled  practice  under  the 
•tatute,  4  Jinn,  ck.  16,  to  receive  them;  for  defendants  are  not  confined 
to  pleas  strictly  consistent- 

The  only  pleas  now  disallowed  on  the  mere  ground  of  inconsistency  are 
the  general  issue  and  tender,  and  the  reason  is,  that  one  goes  to  deny 
the  existence  of  any,  while  the  other  admits  some  cause  of  action. 

The  discretion  vested  in  the  courts  by  the  act  of  1809,  eh  153,  to  order 
and  allow  amendments  to  be  made  in  all  proceedings  whatever,  before 
verdict,  so  as  to  bring  the  merits  of  the  question  between  the  parties 
fairly  to  trial,  is  not  a  capricious  but  a  sound  legal  discretion;  to  the  pro* 
Her  exercise  of  which  the  party  claiming  it  is  entitled,  and  from  which, 
be  cannot  properly  be  debarred  by  any  rule,  that  is  the  mere  creature 
«f  the  court. 


OF  MARYLAND.  325 


Usiow  BANK  OP  MARTIAN  it  ».  KIDGELI.— 1827. 


It  is  a  general  rule  of  evidence  that  in  a  suit  brought  by  a  bank,  one  who 
is  a  stockholder  and  interested  in  the  event  of  the  suit  is  not  a  compe- 
tent witness  in  behalf  of  the  institution,  but  that  rule  is  not  without  ex- 
ception— as  where  an  interested  corporator  is  called  upon  to  prove  liinv 
eelf  either  to  be  or  to  have  been  the  depository  of  the  muniments  of  his 
corporation. 

An  interested  corporator,  however,  is  not  a  competent  witness  to  prove,  that 
a  book  continued  to  be  one  of  the  muniments  of  his  corporation  af-.er 
he  had  ceased  to  be  the  depository  thereof. 

The  adoption  of  a  code  of  by-laws  by  a  corporation  need  not  necessarily 
be  by  writing,  but  may  be  proved  as  well  by  the  acts  and  uniform  course 
of  proceedings  of  such  corporation,  as  by  an  entry  or  memorandum  in 
writing. 

Where  a  plaintiff  in  his  replication  sets  out  a  code  of  by-laws  of  a  corpo« 
ration,  which  prescribe  the  duties  of  an  officer  of  such  corporation,  and 
then  assigns  as  a  breach  a  violation  of  duties  so  prescribed,  on  which 
breach  issue  is  tendered  by  the  defendant  and  joined  by  the  plaintiff", 
such  by-laws  are  virtually  admitted  by  the  defendant  in  his  pleadings. 

It  is  a  general  principle  of  pleading,  that  where  a  plea  produce;,  a  direct 
affirmative  and  negative  by  denying  the  allegation  in  the  declaration,  it 
should  conclude  to  the  country,  whether  the  affirmative  of  the  issue  is 
held  by  the  plaintiff  or  defendant;  and  that  the  proof  of  the  affirmative 
rests  on  him  who  asserts  il. 

When  new  matter  is  introduced  on  either  side,  the  pleading  ought  to  con- 
clude with  a  verification. 

In  the  application  of  these  rules,  the  plea  of  general  non  est  factum  in  an 
action  of  debt  on  a  bond,  which  by  denying  the  allegation  in  the  decla- 
ration, that  it  is  the  writing  obligatory  of  the  defendant,  makes  the  issue 
between  the  parties,  concludes  to  the  country,  and  throws  the  whole 
proof  of  the  execution  of  the  bond,  including  the  delivery,  upon  the 
plaintiff,  who  in  that  case  asserts  the  affirmative. 

Under  an  issue  joined  upon  a  plea  of  general  non  eat  factum,  the  defendant 
may  give  in  evidence  any  thing  which  goes  to  show  that  the  instrument 
of  writing  was  originally  void  at  common  law — as  lunacy,  fraud,  cover* 
ture,  &.c.  or  that  it  had  become  void  subsequent  to  its  execution-— as  by 
erasure,  alterations,  &c.  for  that  plea  puts  in  issue  as  well  its  continuance 
as  a  deed,  as  its  execution. 

A  defendant  may  plead  specially  any  matter  which  he  migh^  fjive  in  evi- 
dence under  the  plea  of  general  non  est  factum;  but  if  he  chooses  10  do 
so,  being  new  matter,  he  must  do  it  with  a  verification,  and  holding  the 
affirmative,  he  draws  the  burthen  of  proof  upon  himself. 

If  a  defendant  seeks  to  avoid  a  bond  for  duress,  infancy,  usury.  &c  which 
cannot  be  given  in  evidence  under  the  general  issue,  (»l<e  bond  not  be- 
ing therefore  void,  but  voidable,)  he  must  plead  such  IKW  special  mat- 
ter with  a  verification,  and  the  proof  lies  upon  him.  In  every  such  case 
the  issue  is  upon  the  matter  specially  alleged  in  the  plea. 
The  defendant  may  give  in  evidence,  under  the  plea  of  general  nan  est  foe* 
turn,  that  the  instrument  of  writing  was  delivered  as  an  escrmv  on  a  con- 
dition not  performed;  and  it  la  settled  he  may  plead  it  specially,  and  that 


326  CASES  IN  THE  COURT  OF  APPEALS 

UJTION  BANK  OF  MAIITLAND  v.  UIDGELT. — 1827 

the  proper  conclusion  to  that  plea  is  to  the  country;  because  it  is  a  spe- 
cial negative  to  the  affirmative  in  the  declaration—  the  allegation  in  the  de- 
claration that  it  is  the  writing  obligatory  of  the  defendant,  including  the 
allegation  of  the  delivery  of  it  as  a  deed,-  and  it  is  this  conclusion  to  the 
country,  that  raises  the  question,  whether  the  proof  is  on  the  plaintiff 
or  defendant. 

\Vhere  the  delivery  of  a  deed  as  an  escrow  is  pleaded,  the  issue  is  upon 
that  special  matter,  which  being  alleged  and  relied  upon  by  the  defen- 
dant to  show  that  is  not  his  deed,  the  proof  of  that  allegation  rests  upon 
liim;  and  if  there  be  no  pioof  on  the  part  of  the  defendant,  the  posses- 
sion of  the  instrument  by  the  plaintiff,  is  prima  facie  evidence  of  the  de» 
livery  as  a  deed,  and  is  sufficient  to  sustain  the  issue  on  his  part. 

If  the  delivery  as  an  escrow  be  proved  on  the  part  of  the  defendant,  as  al- 
leged in  the  plea,  the  proof  of  the  performance  of  the,  condition  lies 
upon  the  plaintiff,  where  the  affirmative  is  with  him. 

And  where  the  defendant  pleaded  that  he  signed  the  supposed  writ'.ng  ob- 
ligatory at  the  request  of  H,  and  as  his  surety,  and  returned  the  same  to 
H,  to  be  by  him  submitted  to  the  obligees,  (a  corporation,)  for  their  ap- 
probation and  acceptance;  and  if  the  same  should  be  approved  and  ac- 
cepted by  them,  that  then  the  same  was  to  be  considered  and  delivered 
as  the  act  and  deed  of  the  defendant;  and  that  the  same  never  was  ap- 
proved of  by  the  said  obligees  by  any  act  in  their  corporate  capacity, 
and  so  it  was  not  his  deed;  in  the  absence  of  all  evidence  on  the  part  of 
the  defendant,  the  possession  and  production  of  the  instrument  of  writ- 
Ing  by  the  obligees  would  be  sufficient  prima  facie  evidence  of  the  de- 
livery and  acceptance,  to  entitle  them  to  a  verdict,  on  the  issue  joined 
on  such  a  plea. 

It  seems  to  have  been  formerly  held,  that  a  corporation  aggregate  could 
only  act  by  its  common  seal — could  do  nothing  without  deed;  but  that 
doctrine  is  now  no  where  sanctioned  as  a  universal  proposition. 

The  acts  of  corporations  may  now  be  evidenced  by  writing  without  seal. 

The  assent  and  acts  of  corporations,  like  those  of  individuals,  not  reduced 
to  writing,  may  be  inferred  from  other  facts  and  circumstances,  without 
a  violation  of  any  known  rule  of  evidence. 

A  corporation  may  be  bound  by  the  acts  of  its  duly  authorised  agent,  al- 
though such  acts  are  not  reduced  to  writing. 

Where  the  charter  of  a  bank  required  its  cashier  to  give  bond,  with  two  or 
more  sureties,  to  the  satisfaction  of  the  president  and  directors,  a  bond 
executed  by  the  cashier,  and  others,  as  his  sureties,  reciting  his  appoint- 
ment as  cashier,  was  found  deposited  among  the  archives  and  variable 
original  papers  and  documents  of  the  bank,  in  an  iron  chest  in  the  bank- 
ing house  of  the  corporation,  the  cashier  continued  to  act  in  that  capaci- 
ty for  years  after  the  date  of  the  bond,  without  any  re-appoinlment.  In  an 
action  on  such  bond  by  the  corporation — Held,  that  in  the  absence  of  all 
testimony  respecting  the  execution  of  the  bond,  the  jury  ought  to  be 
permitted  to  infer  that  it  was  duly  executed  and  delivered  by  the  defen- 
dant, and  accepted  by  the  plaintiffs,  which  acceptance  necessarily  includ- 
ed the  approbation  of  the  board  of  directors,  or  their  satisfaction  with 
the-sureties,  and  was  not  necessary  to  be  in  writing. 


OF  MARYLAND,  327 

Usios  BANK  OF  MAHYLAND  v.    KIDSELT. — 1827. 

Where  the  pleadings  in  a  cause  put  in  issue  the  facts  that  certain  false  and 
deoeptious  entries  were  made  in  the  hooks  of  a  banking  corporation  by 
its  clerks,  with  the  connivance  of  the  cashier,  on  proof  that  such  books 
were  kept  by  the  clerks  of  such  bank,  an,d  such  entries  were  in  their 
handwriting-,  the  books  are  evidence  to  show  what  entries  were  in  them, 
which  can  only  be  done  by  their  production,  and  are  proper  to  lay  a 
foundation  for  other  testimony  to  show  fraud,  malconduct,  neglect,  or 
violation  of  dtitv  by  such  cashier. 

Where  by  the  charter  of  a  bank  the  directors  were  to  be  chosen  annually, 
and  they  "for  the  time  being1,  have  power  to  appoint  a  cashier,  and  such 
other  officers  under  them,  as  may  be  necessary  for  executing  the  busi- 
ness of  said  corporation,"  a  cashier  so  appointed  is  an  officer  of  the  cor- 
poration, the  duration  of  whose  office,  in  the  absence  of  any  express  li- 
mitation, is  limited  only  by  the  duration  of  the  charter,  subject  to  the  re- 
moval of  the  incumbent  by  the  directors,  as  occasion  might  require,  and 
is  not  necessarily  an  annual  officer. 

In  construing  a  bond  the  court  must  look  to  the  intention  of  the  parties  at 
the  time  it  was  executed,  and  the  contract  must  be  expounded  as  the  lav? 
was,  when  the  contract  was  made. 

Where  an  act  of  incorporation,  under  which  a  bond  was  taken  to  secure 
the  good  conduct  of  one  of  the  officers  of  the  corporation,  was  limited 
in  its  duration  to  a  certain  period,  the  bond  must  have  the  same  limita- 
tion; because  the  parties,  looking  to  that  act,  it  would  seem  to  be  very 
clear  that  no  responsibility  was  contemplated  beyond  the  period  of  its 
specified  existence.  The  extension  of  the  charter  beyond  the  period  of 
its  first  limitation  by  legislative  authority,  does  not  enter  into  the  con- 
tract, and  cannot  enlarge  it. 

The  day  laid  in  pleadings  is  frequently  not  material,  as  in  trespass,  where 
the  injury  charged  may  be  proved  to  have  been  committed  on  a  day  be- 
fore or  after  the  time  stated  in  the  declaration;  provided  it  appears  to 
have  been  before  the  action  was  brought. 

In  assigning  the  breaches  of  the  condition  of  a  bond,  which  was  taken  ami 
intended  as  a  security  for  a  limited  period,  the  time  of  the  commission  of 
the  breach,  is  so  far  material,  that  it  must  be  laid  to  be  within  such  peri- 
od; and  an  allegation  of  a  breach  beyond  that  period,  renders  the  whole 
assignment  defective,  and  bad  on  demurrer,  as  it  then  appears  on  the  re- 
cord that  the  defendant  is  charged  beyond  his  legal  responsibility. 

APPEAL  from  Baltimore  County  Court.  This  was  an  action 
of  debt,  brought  by  the  appellants  against  the  appellee,  as  one 
of  the  sureties  in  the  following  writing  obligatory,  to  wit: 
"Know  all  men  by  these  presents,  that  we,  Ralph  Higgin- 
bothom,  Robert  Purviance,  Daniel  Delozier,  Edward  John- 
son and  Nicholas  G.  Riclgely,  are  held  and  firmly  bound  unto 
the  President  and  Directors  of  the  Union  Bank  of  Mary- 
land, and  their  successors,  in  the  just  and  full  sum  of  fifty 
thousand  dollars,  to  be  paid  to  the  said  President  and  Direc- 


328      CASES  IN  THE  COURT  OP  APPEALS 


BANK  OF  MARTLASD  v.  RIDGELY.—  1827. 

tors  of  the  Union  Bank  of  Maryland,  or  their  certain  at- 
torney, their  successors  or  assigns:  To  which  payment  well  and 
truly  to  be  made  and  done,  we  bind  ourselves,  jointly  and 
severally,  our,  and  each  of  our  executors,  administrators  and 
assigns,  firmly  by  these  presents:  sealed  with  our  seals,  and 
dated  this  thirtieth  day  of  March,  in  the  year  of  our  Lord, 
eighteen  hundred  and  five.  Whereas,  the  said  President  and 
Directors  of  the  Union  Bank  of  Maryland  have  taken  and 
employed  the  said  Ralph  Higginbothom  in  the  capacity  of 
Cashier,  and  such  other  business  as  the  said  President  and  Di- 
rectors of  the  Union  Bank  of  Maryland  shall  think  fit  to 
employ  him  about.  Now  the  condition  of  the  above  obliga- 
tion is  such,  that  if  the  above  bound  Ralph  Higginbothom 
shall  and  do,  from  time  to  time,  make  and  give  to  the  Presi- 
dent and  Directors  of  the  Union  Bank  of  Maryland,  and 
their  successors,  a  just  and  true  account  in  writing,  and  dis- 
charge himself  of,  for  and  from,  and  likewise  pay  and  deliver 
tmto  the  said  President  and  Directors  of  the  Union  Bank  of 
Maryland,  and  their  successors,  all  such  sum  or  sums  of 
money,  bills,  notes,  goods  and  things  whatsoever,  which  he 
shall  irom  time  to  time  receive,  discharge,  or  which  shall  come 
to  his  hands,  charge  or  custody,  of  or  belonging  to  the  said 
President  and  Directors  of  the  Union  Bank  of  Maryland, 
or  their  successors,  or  of  any  other  person  or  persons  whatso- 
ever, wherewith  they,  the  said  President  and  Directors  of 
ihe  Union  Bank  of  Maryland,  or  their  successors,  shall  be 
charged  or  chargeable;  and  shall  in  all  things,  well  and  truly 
perform  the  duties  of  Cashier,  to  the  said  President  and  Di- 
rectors of  the  Union  Bank  of  Maryland;  and  also,  if  the  said 
Ralph  Higginbothom,  Robert  Purviance,  Daniel  Delozier, 
Edward  Johnson  and  Nicholas  G.  Ridgelyror  either,  or  any 
of  them,  either  or  any  of  their  heirs,  executors,  or  administra- 
tors, shall  and  do  make  and  give,  or  cause  to  be  made  and 
given,  unto  the  said  President  and  Directors  of  the  Union 
JSank  of  Maryland,  or  their  successors,  full  satisfaction  and 
i>ecompense  of  and  for  all  such  monies,  bills,  notes,  goods, 
wares  and  effects,  or  other  things  whatsoever,  of  or  belonging 
to  the  said  President  and  Directors  of  the  Union  Bank  of 
Maryland)  or  their  successors,  or  of  any  other  person  or  per- 


MARYLAND.  329 


USIOH  BASK  OF  MARTIAHI*  v.   KIDGELT. — 1827. 


sons  wherewith  they,  the  said  President  and  Directors  of  the 
Union  Bank  of  Maryland,  or  their  successors,  shall  or  may 
be  charged  or  chargeable,  which,  at  any  time  or  times,  shall  ap- 
pear to  have  been  received  or  discharged  by,  or  come  to  the 
hands,  charge  or  custody  of  the  said  Ralph  Higginbothom^  and 
which  he  shall  not  duly  account  for,  pay,  deliver  or  discharge 
himself  from,  to  the  said  President  and  Directors  of  the 
Union  Bank  of  Maryland,  and  their  successors,  or  which  he 
shall  be  found,  confessed  or  proved  to  be  wasted,  embezzled, 
misspent  or  otherwise  made  away  with,  or  unjustly  detained  by 
the  said  Ralph  Higginbothom,  or  by  any  other  person  or  per- 
sons by  or  through  his  means,  privity  or  procurement,  then  the 
above  obligation  to  be  void  and  of  none  effect,  otherwise  to  be 
and  remain  in  full  force  and  virtue  in  law."  Signed  and  seal- 
ed by  the  obligors.  The  defendant,  (the  appellee,)  craved 
oyer  of  the  bond,  and  pleaded. 

First  Plea.  "That  the  plaintiffs  ought  not  to  have  or  main* 
tain  their  aforesaid  action  thereof  against  him,  the  said  Nicholas, 
because  he  says,  that  the  said  Ralph  Higginbothom,  in  tha 
condition  of  the  said  writing  obligatory  mentioned,  from  the 
time  of  the  appointment  of  the  said  Ralph,  as  Cashier,  by  the 
said  plaintiffs,  and  from  the  time  of  the  making  of  the  said 
•writing  obligatory,  hitherto  hath  well  and  truly  observed,  per- 
formed, fulfilled  and  kept,  all  and  singular  the  matters  and  things 
in  the  condition  of  the  said  writing  obligatory  mentioned  and 
comprised,  in  all  things  therein  contained  on  his  part  and  behalf  to 
be  observed,  performed,  fulfilled  and  kept;  and  hath  from  time 
to  time  made  and  given  unto  the  said  plaintiffs,  a  just  and  true 
account  in  writing,  and  hath  discharged  himself  of,  for  and 
from,  and  hath  likewise  paid  and  delivered  unto  the  said  plain- 
tiffs, all  such  sum  or  sums  of  money,  bills,  notes,  goods  and 
things  whatsoever,  which  he,  the  said  Ralph,  did,  from  time- 
to  time,  receive,  discharge,  or  which  came  to  bis  hands,  charge 
or  custody,  of  or  belonging  to  the  said  plaintiffs,  or  of  or  be- 
longing to  any  other  person  or  persons  whatsoever,  wherewith 
the  said  plaintiffs  should  or  might  have  been  charged  or  charge- 
able; and  also,  that  he,  the  said  Ralph,  hath,  in  all  things,  well 
and  truly  performed  the  duties  of  a  cashier  to  the  said  plain* 
VOL.  I*  43 


33$  CASES  IN  THE  COURT  Q*  APPEALS 

UNION  BANK  OF  MARYLAND  v.   RIDHELT. — 1827. 

tiffs,  to  wit,  at  the  county  aforesaid,  and  this  the  said  Nicholas 
is  ready  to  verify:  wherefore  he  prays  judgment  if,"  &(\ 

Second  Plea.  "That  the  plaintiffs  ought  not  to  have  or 
maintain  their  aforesaid  action  thereof  against  him,  the  said 
Nicholas,  because  he  says,  that  by  a  certain  act  of  the  general 
assembly  of  this  state,  made  and  passed  at  a  session  of  assem- 
bly, begun  and  held  at  the  city  of  Annapolis,  on  the  fifth  day 
ot  November,  in  the  year  eighteen  hundred  and  four,  and  end- 
ed the  twentieth  day  of  January,  eighteen  hundred  and  five, 
entitled,  An  act  to  incorporate  the  stockholders  in  the  Union 
Sank  of  Maryland^  the  proprietors  of  shares  in  the  said  bank, 
as  well  as  those  who  might  thereafter  become  stockholders, 
their  successors  and  assigns,  were  created  and  made  a  corpora- 
tion and  body  politic,  by  the  name  and  style  of  The  President 
and  Directors  of  the  Union  Bank  of  Maryland;  and  it  was, 
amongst  other  things,  enacted  by  the  said  act,  that  the  same, 
that  is  to  say,  the  said  act,  should  continue  in  force  until  the 
expiration  of  the  year  eighteen  hundred  and  fifteen,  and  until 
the  end  of  the  next  session  of  assembly  thereafter.  And  the 
said  Nicholas  further  says,  that  at  the  time  the  said  Ralph 
Higginbothom,  in  the  said  supposed  writing  obligatory  men- 
tioned, was  appointed  cashier  of  the  said  Union  Bank  of  Ma- 
ryland, by  the  directors  thereof,  and  at  the  time  of  the  making 
of  the  said  writing  obligatory,  to  wit,  on  the  thirtieth  day  of 
March,  in  the  year  eighteen  hundred  and  five,  the  said  Presi- 
dent and  Directors  of  the  Union  Bank  of  Maryland,  were 
acting  under,  and  conformably  to,  the  said  act  of  assembly;  and 
under  and  by  virtue,  and  in  pursuance  of  saidact,  the  said  Ralph 
Higginbothom  was  appointed  cashier  as  aforesaid,  and  that  the 
said  supposed  writing  obligatory  was  made  and  delivered  to 
secure  the  faithful  performance  of  the  duties  of  cashier,  and  of 
the  other  acts  and  things  therein  mentioned,  by  the  said  Ralphy 
for  and  during,  and  until  the  expiration  of  the  said  act  of  in- 
corporation or  charter,  and  no  longer,  to  wit,  at  the  county 
aforesaid.  And  the  said  Nicholas  further  says,  that  the  said 
Ralph  Higginbothom,  from  the  time  he  was  so  appointed 
cashier  as  aforesaid,  and  from  the  time  of  making  of  the  said 
supposed  writing  obligatory,  and  from  thence  until  the  expira- 
tion of  the  year  eighteen  hundred  and  fifteen,  and  tmtil  the  end 


OF  MARYLAND.  331 


Uwios  BANK  OF  MARTLAXD  r.   HIDGELY. — 1827. 


of  the  next  session  of  assembly  thereafter,  to  wit,  until  the 
sixth  day  of  February,  eighteen  hundred  and  seventeen,  hath 
well  and  truly  observed,  performed,  fulfilled  and  kept,  all  and 
singular  the  matters  and  things  in  the  condition  of  the  said  sup- 
posed writing  obligatory  mentioned  and  comprised,  in  all  things 
therein  contained,  on  his  part  and  behalf  to  be  observed,  per- 
formed, fulfilled  and  kept;  and  hath  from  time  to  time,  made 
and  given  unto  the  President  and  Directors  of  the  Union 
Sank  of  Maryland,  for  the  time  being,  a  just  and  true  ac- 
count in  writing,  and  hath  discharged  himself  of,  for  and  from, 
and  hath  likewise  paid  and  delivered  unto  the  President  and 
Directors  of  the  Union  Bank  of  Maryland,  for  the  time 
being,  all  such  sum  or  sums  of  money,  bills,  notes,  goods,  and 
things  whatsoever,  which  he,  the  said  Ralph  did,  from  time  to 
time,  receive,  discharge,  or  which  came  to  his  hands,  charge  or 
custody,  of  or  belonging  to  the  President  and  Directors  of  the 
Union  Bank  of  Maryland,  for  the  time  being,  or  of  or  be- 
longing to  any  other  person  or  persons  whatsoever,  wherewith 
the  said  President  and  Directors  of  the  Union  Bank  of  Ma- 
ryland, for  the  time  being,  or  their  successors,  should  or  might 
have  been  charged  or  chargeable;  and  also,  that  he,  the  said 
Ralph,  hath,  in  all  things,  well  and  truly  performed  the  duties 
of  a  cashier  to  the  President  and  Directors  of  the  Union  Bank 
of  Maryland,  for  the  time  being,  to  wit,  at  the  county  afore- 
said; and  this  the  said  Nicholas  is  ready  to  verify:  Wherefore 
he  prays  judgment  if,"  &c. 

Third  Plea.  "That  the  plaintiffs  ought  not  to  have  or  main- 
tain their  aforesaid  action  thereof  against  him,  the  said  Nicholas, 
because  he  says,  that  the  act  of  assembly  incoiporating  the  said 
President  and  Director's  by  its  original  limitation,  would  have 
expired  long  before  the  commencement  of  the  said  action,  to 
wit,  on  the  sixth  day  of  February,  in  the  year  eighteen  hundred 
and  seventeen,  and  that  the  said  act  was  continued  and  extend* 
ed  by  an  act  of  assembly,  passed  at  December  session,  eighteen 
hundred  and  fifteen,  entitled,  An  act  declaring  the  continua- 
tion and  extension  of  the  charters  of  the  several  banks  therein 
mentioned,  upon  condition  that  the  said  President  and  Direc- 
tors fulfilled  and  complied  with  the  terms  and  conditions  of 
the  act  of  assembly,  passed  at  December  session,  eighteen  nun* 


332  CASES  IN  THE  COURT  OF  APPEALS 

USION  BANK  OF  MAHTLAND  v.  KIDGELT. — 1827. 

dred  and  thirteen,  entitled,  A  supplement  to  the  act,  entitled, 
An  act  to  incorporate  a  company  to  make  a  turnpike  road  lead- 
ing to  Cumberland,  and  for  the  extension  of  the  charters  of 
the  several  banks  in  the  city  of  Baltimore,  and  for  other  pur- 
poses. And  the  said  Nicholas  in  fact  says,  that  the  said  Presi- 
dent and  Directors  have  not  fulfilled  and  complied  with  the 
terms  and  provisions  of  the  said  last  act;  because  the  said  Presi- 
dent and  Directors  have  not  subscribed  for  as  much  stock  in 
the  company  incorporated  by  the  said  act,  as  by  the  second  sec- 
tion of  the  said  act,  the  said  President  and  Directors  were 
directed  and  ordered  to  subscribe  for;  and  because  the  said 
President  and  Directors,  though  directed  and  ordained  by  the 
seventh  section  of  the  said  act  so  to  do,  have  not  paid  annually 
On  the  first  day  of  January,  after  the  first  day  of  January, 
eighteen  hundred  and  fifteen,  the  sum  of  twenty  cents  upon 
every  hundred  dollars  of  the  capital  stock  of  the  said  Presi- 
dent and  Directors,  which  was  and  has  been  actually  paid 
into  the  treasury  of  the  western  shore  of  the  state  of  Mary- 
land, but,  on  the  contrary,  the  said  President  and  Directors 
have  neglected  to  pay  the  same,  as  well  when  the  same  became 
payable,  as  for  the  space  of  six  months  thereafter,  to  wit,  at 
the  county  aforesaid.  By  means  whereof,  and  long  before  the 
commencement  of  the  present  action,  to  wit,  on  the  fifth  day 
of  February,  in  the  year  eighteen  hundred  and  seventeen,  the 
charter  of  or  the  act  incorporating  the  said  President  and  Di- 
rectors, became  and  was  null  and  void,  and  of  no  force,  and 
the  said  President  and  Directors  ceased  to  have  any  right  to 
have  or  maintain  any  action  or  suit  whatever,  to  wit,  at  the 
fcounty  aforesaid ;  and  this,  the  said  Nicholas  is  ready  to  verify* 
Whereupon  he  prays  judgment  if,"  &c. 

fourth  Plea.  "That  the  plaintiffs,  their  action  aforesaid 
thereof  against  him  the  said  defendant,  ought  not  to  have  or 
maintain,  because  he  says,  that  it  was  the  duty  of  a  committee 
of  the  board  of  directors  of  the  said  bank,  consisting  of  at  least 
three  of  their  number,  to  visit  in  rotation  at  least  once  in  every 
three  months  during  the  time  which  said  Ralph  was  cashier  of 
the  said  Union  Bank,  the  vaults  in  which  the  cash  and  other' 
Valuable  effects  belonging  to  or  in  the  custody  of  the  said  bank, 
"Were  deposited  j  and  also,  to  make,  or  cause  to  be  made  in  their 


<>F  MARYLAND.  333 


HA.NK  OF   MAUYLASU  v.    RIDUELT  —  18:27. 


presence  an  inventory  of  the  same,  to  be  compared  with  the 
books,  in  order  to  ascertain  their  agreement  therewith,  and 
make  a  report  to  the  board.  And  the  said  defendant  avers, 
that  a  committee  of  the  board  of  directors,  consisting  of  at 
least  three  of  their  number,  did  not  visit  in  rotation  at  least 
cnce  in  every  three  months,  during  the  time  which  said  Ralph 
was  cashier  of  said  Union  Bank)  the  said  vaults,  nor  did  the 
said  committee  make,  or  cause  to  be  made  in  their  presence,  an 
inventory  of  the  said  cash  and  other  valuable  effects  to  be  com- 
pared with  the  books,  in  order  to  ascertain  the  agreement  of 
the  said  cash  and  other  valuable  effects  with  the  said  books,  nor 
did  the  said  committee  make  a  report  to  the  board,  but  on  the 
contrary  thereof,  the  aforesaid  matters  and  things,  which  it  was 
the  duty  of  said  committee  to  have  done,  they  wholly  ne- 
glected and  omitted  to  do,  to  wit,  at  the  county  aforesaid.  And 
the  said  defendant  further  says,  that  any  loss,  damage  or  injury, 
which  may  have  happened  to,  or  been  sustained  by  the  said 
plaintiffs,  has  happened  and  been  sustained  by  reason  and  on 
account  of  the  said  neglects  and  omissions  of  them  the  said 
plaintiffs;  and  this  he  is  ready  to  verify;  wherefore  the  said  de- 
fendant prays  judgment  if,"  &c. 

Fifth  Plea.  "That  the  plaintiffs  ought  not  to  have  or 
maintain  their  aforesaid  action  thereof  against  him,  because  he 
says,  that  by  a  certain  act  of  the  general  assembly  of  this  state, 
made  and  passed  at  a  session  of  assembly,  begun  and  held  at 
the  city  of  Annapolis,  on  the  fifth  day  of  November,  in  the 
year  one  thousand  eight  hundred  and  four,  entitled,  An  act  to 
incorporate  the  stockholders  in  the  Union  Bank  of  Mary- 
land, the  proprietors  of  shares  in  the  said  bank,  as  well  as  those 
who  might  thereafter  become  stockholders,  their  successors  and 
assigns,  were  created  and  made  a  body  politic  and  corporate, 
by  the  name  and  style  of  The  President  and  Directors  of  the 
Union  Bank  of  Maryland,  and  it  was  amongst  other  things 
enacted  by  the  tenth  section  of  the  said  act,  that  certain  rules, 
restrictions,  limitations  and  provisions,  should  form  and  be  fun- 
damental articles  of  the  constitution  of  the  said  corporation. 
And  the  said  Nicholas  further  saith,  that  by  the  second  of  said 
fundamental  articles  of  the  said  constitution,  it  is,  amongst 
Other  things,  provided,  that  no  director,  having  served  for  thr^c 


334  CASES  IN  THE  COURT  OP  APPEALS 

UNION  BANK  OF  MARYLAND  v.  RIDGELT. — 1827 

years  successively,  shall  be  eligible  for  the  two  succeeding  years 
thereafter.  And  the  said  Nicholas  further  saith,  that  at  the 
time  the  said  Ralph  Higginbothom,  in  the  said  supposed  writ- 
ing obligatory  mentioned,  was  appointed  cashier  of  the  said 
Union  Bank,  by  the  directors  thereof,  and  at  the  time  of  the 
making  the  said  supposed  writing  obligatory,  to  wit,  on  the 
twentieth  day  of  March,  in  the  year  one  thousand  eight  hun- 
dred and  five,  the  said  President  and  Directors  of  the  said 
Union  Bank  of  Maryland,  were  acting  under  and  by  virtue 
of  the  said  act  of  assembly  and  conformably  thereto.  And  the 
said  Nicholas  further  saith,  that  afterwards,  to  wit,  on  the  thir- 
ty-first day  of  December,  one  thousand  eight  hundred  and  six, 
at  a  session  of  the  general  assembly  of  this  state,  begun  and 
held  at  the  city  of  Annapolis,  on  the  third  day  of  November, 
in  the  said  last  year,  an  act  was  made  and  passed  by  the  said 
general  assembly,  at  the  request  and  solicitation  of  the  said 
President  and  Directors  of  the  Union  Bank  of  Maryland, 
and  without  the  knowledge  or  consent  of  the  said  Nicholas, 
entitled,  An  act  supplementary  to  an  act,  entitled,  An  act  to  in- 
corporate the  stockholders  in  the  Union  Bank  of  Maryland; 
by  which  said  supplementary  act  it  was  enacted,  that  so  much 
of  the  said  second  fundamental  article  of  the  constitution  of  the 
said  bank,  as  rendered  a  director,  after  serving  for  three  years 
successively,  ineligible  for  the  two  succeeding  years,  should  be, 
and  was  thereby  repealed.  And  the  said  Nicholas  further  said, 
that  the  said  President  and  Directors  of  the  said  bank,  and 
the  stockholders  therein,  assented  to  the  said  repeal  of  so  much 
of  the  said  second  fundamental  article,  and  have  always,  ever 
since,  acted  under  and  conformably  to  the  said  original  act,  as 
thus  altered,  and  in  part  repealed,  and  that  at  an  election  of  di- 
rectors of  the  said  bank,  held  on  the  first  Monday  in  July,  in 
the  year  one  thousand  eight  hundred  and  eight,  sundry  persons 
who  had  been  elected  and  served  as  directors  of  said  bank,  for 
three  successive  years  previous  to  the  said  last  mentioned  day, 
were  and  have  been,  ever  since,  continually  re-elected  directors 
of  said  bank,  and  served  as  such.  And  the  said  Nicholas  fur- 
ther saith,  that  the  said  Ralph  Higginbothom,  from  the  time 
of  his  appointment  as  cashier  of  said  bank,  and  from  the  time 
of  the  making  of  the  said  supposed  writing  obligatory,  and 


OF  MARYLAND.  335 


UNIOX  BANK  OF    MARYLAND  v.  RIDGELT. — 1827. 

from  thence  until  the  said  first  Monday  in  July,  in  the  year 
last  aforesaid,  did,  from  time  to  time,  make  and  give  unto  the 
said  President  and  Directors  of  the  Union  Bank  of  Mary- 
land^ just  and  true  account  in  writing,  and  discharge  himself, 
of,  for  and  from,  and  did  likewise  pay  and  deliver  to  the  Pre- 
sident and  Directors  of  the  Union  jSank  of  Maryland,  for 
the  time  being,  all  such  sum  or  sums  of  money,  bills,  notes, 
goods  and  things  whatsoever,  which  he  the  said  Ralph  did, 
from  time  to  time,  receive,  discharge, or  that  came  to  his  hands* 
charge  or  custody,  of  or  belonging  to  the  said  President  and 
Directors  of  the  Union  Bank  of  Maryland,  or  of  or  belong- 
ing to  any  other  person  or  persons  whatsoever,  wherewith  the 
said  President  and  Directors  of  the  Union  Bank  of  Mary- 
land, for  the  time  being,  or  their  successors,  were  or  might 
have  been  charged  or  chargeable;  and  also,  that  he,  the  said 
Ralph  did,  in  all  things,  well  and  truly  perform  the  duties  of 
cashier  to  the  said  President  and  Directors  of  the  Union 
Bank  of  Maryland,  for  the  time  being,  to  wit,  at  the  county 
aforesaid;  and  this,  the  said  Nicholas  is  ready  to  verify;  where- 
fore he  prays  judgment  if,"  &c.  To  these  pleas  the  plaintiffs 
replied,  viz. 

Replication  to  1st  plea.  "That  they,  by  any  thing  by 
the  defendant,  in  his  first  plea,  by  him  above  pleaded,  ought 
not  to  be  barred  from  having  their  said  action  thereof  against 
him,  because,  protesting,"  &c.  "For  plea,  nevertheless,  by 
way  of  replication  to  the  said  plea,  by  the  defendant,  first  above 
pleaded,  the  plaintiffs  say,  that  at  a  session  of  the  general  as- 
sembly of  Maryland,  begun  and  held  at  the  city  of  Jlnnapo- 
lis,  on  the  fifth  day  of  November,  in  the  year  eighteen  hundred 
and  four,  amongst  others,  a  certain  act  of  assembly  was  passed, 
entitled,  An  act  to  incorporate  the  stockholders  in  the  Union 
Bank  of  Maryland,  (1804,  ch.  48,)  which  follows  in  theser 
words,  to  wit: 
•An  Jict  to  incorporate  the  Stockholders  in  the  Union  Bank 

of  Maryland. 

[The  following  appear  to  be  the  only  material  parts  of  the  act 
necessary  to  be  noticed.  ] 

1.  WHEREAS  the  president  and  directors  of  the  Union  Bank 
»f  Maryland,  on  behalf  of  themselves  and  others,  proprietors 


336  CASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK  OF   MARYLAND  v.  RIDOEIY. — 1827. 

of  stock  in  the  said  bank,  have  petitioned  this  general  assem- 
bly, setting  forth,  that  sundry  persons,  by  articles  of  voluntary 
association,  have  contracted  and  agreed,  each  with  the  other,  to 
conduct  and  carry  on  the  usual  operations  of  the  banking  sys- 
tem, at  the  city  of  Baltimore,  under  the  name  and  style  of 
The  President  and  D>r'ectors  of  the  Union  Bank  of  Mary- 
land^ and  praying  that  an  act  may  pass  to  incorporate  the  stock- 
holders in  the  said  bank;  and  the  same  being  reasonable, 
Therefore, 

II.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
That  the  said  bank  shall  be,  and  the  same  is-  hereby  established 
at  the  city  or  precincts  of  Baltimore,  at  the  discretion  of  the 
president  and  directors;  and  the  capital  stock  of  the  said  bank 
shall  consist  of  three  millions  of  dollars,  money  of  the  United 
States,  divided  into  shares  of  one  hundred  dollars  each;  and 
that  five  thousand  shares  be  reserved  for  the  use  and  benefit  of 
the  state  of  Maryland,  to  be  subscribed  for  by  the  said  state, 
when  desired  by  the  legislature  thereof. 

VI.  And  be  it  enacted,  That  the  president  and  directors 
of  the  said  bank,  to  wit:    William   Winchester,  President; 
James  A.  Buchanan,  Solomon  Etting,  David  Winchester, 
Andrew  Ellicott,  jr.,  Luke  Tiernan,  Charles  Ridgelyf  of 
Hampton,  Solomon  Birckhead,  Thomas  M'Elderry,  Wal- 
ter Dorsey,  Henry  Payson,  Hezekiah  Clagett,  Isaac  Tyson, 
Ebenezer  Finley,  Stewart  Brotvn,  John  Hollins  and  Henry 
Schroeder,  shall  continue  to  act  as  such,  until  the  first  Monday 
of  July,  eighteen  hundred  and  five,  and  until  a  new  election  of 
directors  shall  take  place. 

VII.  And  be  it  enacted,  That  the  affairs  of  the  said  compa- 
ny shall  be  conducted  by  a  president  and  sixteen  directors,  to- 
gether with  such  other  directors  as  the  state  shall  appoint,  in 
the  manner  hereinafter  directed,  and  that  there  shall  be  an  elec- 
tion of  sixteen  directors,  by  ballot,  on  the  first  Monday  in  July 
jnext,  and  on  the  first  Monday  in  July  of  each  and  every  year 
thereafter,  by  the  stockholders  and  proprietors  of  the  capital 
stock  of  the  said  corporation,  and  by  plurality  of  votes>at  such 
place,  and  in  such  manner,  as  the  president  and  directors  for  the 
time  being  shall  appoint;  and  those  who  shall  be  chosen  at  any 
•ejection,  shall  be  capable  of  serving  as  directors,  by  virtue  of 


OF  MARYLAND.  337 


UNION  BANK  OF  MARYLAND  v.   HIUGULT. — 1827. 

such  choice,  until  the  end  and  expiration  of  the  first  Monday  of 
July  next  ensuing  the  time  of  such  election,  and  no  longer,  un- 
less in  case  of  failure  of  election  on  the  day  appointed,  and  in 
that  case,  until  such  election  takes  place,  and  the  said  directors,' 
at  the  first  meeting  after  such  election,  shall  choose  a  president 
And  in  case  it  should  happen  that  an  election  of  directors  should 
not  be  made  upon  the  day,  when,  pursuant  to  this  act,  it  ought 
to  have  been  made,  the  said  corporation  shall  not,  for  that  cause, 
be  deemed  to  be  dissolved;  but  it  shall  be  lawful,  on  any  other 
day,  within  ten  days  thereafter,  to  hold  and  make  an  election 
in  such  manner  as  shall  have  been  regulated  by  the  laws  and 
ordinances  of  the  said  corporation.  And  in  case  of  the  death, 
resignation,  disqualification,  or  removal  out  of  the  state  of  a 
director,  or  his  being  appointed  president  01  the  bank,  his 
place  may  be  filled  up  by  the  directors,  for  the  remainder  of  the 
year. 

Vf  II.  Jlnd  be  it  enacted,  That  the  directors  for  the  time 
being  shall  have  power  to  appoint  a  cashier,  and  such  other  of- 
ficers and  servants  under  them,  as  may  be  necessary  for  execut- 
ing the  business  of  the  said  corporation,  and  to  allow  them  such, 
compensation  for  their  services  respectively,  as  shall  appear 
reasonable. 

IX.  tfnd  be  it  enacted,  That  the  president  and  directors  for 
the  time  being,  may  make  aTl  such  rules,  orders,  by-laws  and 
regulations,  for  the  government  of  the  said  corporation,  its  of- 
ficers and  servants,  as  they,  or  a  majority  of  them,  from  time 
to  time  shall  think  fit,  not  inconsistent  with  law  or  the  provi- 
sions of  this  act,  the  same  at  pleasure  to  revise,  alter  and  annul, 
and  may  use,  employ  and  dispose  of  the  funds,  money  and  cre- 
dit of  the  said  bank,  as  they,  or  a  majority  of  them,  may  deem 
expedient,  subject,  however,  to  the   restrictions  and  limitations 
hereinafter  mentioned. 

X.  Jlnd  be  it  enacted,  That  the  following  rules,  restrictions, 
limitations  and  provisions,  shall  form  and  be  fundamental  arti- 
cles of  the  constitution  of  the  said  corporation,  viz.  &c. 

2d.   None  but  a  stockholder,  except  in  the  case  of  director 

chosen  by  the  state,  being  a  citizen  of  the  United  States,  shall 

be  eligible  as  a  director  or  president;  and  every  president  or' 

director,  as  the  case  may  be,  shall  cease  to  be  a  director  or 

voi»  ?.  43 


CASES  IN  THE  COURT  OF  APPEALS 


BANK  OF   MARYLAND  v.  RIDGEI.T.  —  1827. 


sident  upon  his  ceasing  to  be  a  stockholder,  and  not  more  than 
eleven  directors  in  office  shall  be  eligible  for  the  next  succeed- 
ing year;  and  no  director,  having  served  .for  three  years  suc- 
cessively, shall  be  eligible  for  the  two  succeeding  years  there- 
after. 

7th.  The  president,  each  director,  cashier  or  treasurer,  be- 
fore he  enters  upon  the  duties  of  his  office,  shall  take  the  fol- 
lowing oath,  or  affirmation,  as  the  case  may  be:  I  -  ,  do 
swear,  or  affirm,  that  I  will  faithfully,  impartially,  diligently 
and  honestly,  execute  the  duties  of  -  ,  agreeably  to  the 
provisions  of  law,  and  the  trust  reposed  in  me,  to  the  best  of 
my  skill  and  judgment. 

9th.  The  president  and  eight  directors,  shall  constitute  a 
board  for  the  transaction  of  business,  but  ordinary  discounts 
may  be  done  by  the  president  and  five  directors;  in  case  of  sick- 
ness, or  the  necessary  absence  of  the  president,  his  place  may 
be  supplied  by  a  director,  who  he,  by  writing  under  his  hand, 
shall  nominate  for  the  purpose. 

14th.  Every  cashier,  or  treasurer,  before  he'enters  upon  the 
duties  of  his  office,  shall  be  required  to  give  bond,  with  two  or 
more  sureties,  to  the  satisfaction  of  the  president  and  directors, 
in  a  sum  not  less  than  fifty  thousand  dollars,  with  condition  for 
his  good  behaviour. 

XL  find  be  it  enacted,  That  this  act  shall  continue  in  force 
until  the  expiration  of  the  year  eighteen  hundred  and  fifteen, 
and  until  the  end  of  the  next  session  of  assembly  thereafter. 

And  the  plaintiffs  further  say,  that  after  the  passage  of  the 
said  act,  and  in  pursuance  thereof,  and  conformably  thereto,  the 
said  directors  for  the  time  being,  did  constitute  and  appoint  tho 
said  Ralph  to  be  the  cashier  of  the  said-  Union  Bank  of  Ma- 
ryland, to  wit,  on  the  first  day  of  March,  in  the  year  eighteen 
hundred  and  five,  to  wit,  at  the  county  aforesaid;  and  the  plain- 
tiffs further  say,  that  in  pursuance  of,  and  in  conformity  to,  the 
said  act  of  assembly,  the  said  president  and  directors  for  the 
time  being,  did  afterwards,  to  wit,  on  the  twentieth  day  of  Fe- 
bruary, in  the  year  eighteen  hundred  and  five,  make  certain 
rules,  by-laws  and  regulations,  for  the  government  of  the  said 
corporation,  its  officers  and  servants,  to  wit,  at  the  county  afore- 
said ;  which  said  by-laws  follow  in  these  words:-— 


OF  MARYLAND.  339 


UNIOX  BANK  OF   MAUTLASD  v.  RIDGELT. — 1827. 

The  first  code  of  By- Laws  adopted  by  the  Union  Bank  of 

Maryland,  and  which  remained  in  force  until  the  4th  of 

October  1819,  when  they  were  repealed,  and  those  in  the 

printed  copy,  adopted. 

BY-LAWS. 

[The  following  appear  to  be  the  only  parts  of  the  by-laws  ma- 
terial in  this  cause.] 

'Art.  1.  The  President  and  Directors  of  the  Union  Bank 
of  Maryland,  shall  take  charge  of  the  cash  belonging  to  the 
said  bank,  shall  receive  deposits,  issue  bills  or  notes,  signed  by 
the  president  and  countersigned  by  the  cashier,  to  any  amount 
they  may  think  necessary,  not  exceeding  two  millions  of  dol- 
lars; discount  bills  or  notes,  at  the  rate  of  interest  charged  by 
other  banks  in  the  city  of  Baltimore,  and  shall  do  and  perform 
all  such  matters  and  things,  as  may  be  necessary  for  conducting 
and  carry  ing  on  in  a  proper  manner,  the  business  of  said  bank; 
and  during  the  first  six  months  of  the  operation  of  this  bank, 
no  note  or  bill  shall  be  discounted  for  any  term  exceeding  sixty 
days. 

Art.  2.  *3nd  be  it  ordained  by  the  President  and  Directors 
of  the  Union  Bank  of  Maryland,  That  all  and  singular  the 
resolutions  and  acts  of  the  late  commissioners  and  present  di- 
rectors until  this  time,  be  and  are  hereby  confirmed,  and  held 
to  be  good  and  valid  to  all  intents  and  purposes,  as  if  the  same 
had  been  made,  and  entered  into  at  a  regular  meeting  of  the 
stockholders. 

Art.  4.  That  the  bank  shall  keep  open  for  ordinary  business 
from  nine  o'clock  in  the  morning  till  three  o'clock,  P.  M.  every 
day  except  Sundays,  Christmas  day  and  the  fourth  day  of  July. 

Art.  5.  That  all  bills  and  notes  offered  for  discount  shall  be 
delivered  into  the  bank  on  such  day  or  days  in  each  week  as 
the  directors  may  hereafter  appoint,  and  be  laid  before  the  di- 
rectors on  the  next  succeeding  day,  (together  with  a  state  of 
the  funds  of  the  bank,  at  least  twice  a  week)  on  which  day  the 
discount  shall  be  settled,  and  be  drawn  for  accordingly,  at  any 
time  after  twelve  o'clock,  and  the  notes  or  bills,  not  discount- 
ed, shall  be  returned  on  demand. 

Art.  6.  That  all  discounts  shall  be  made  on  personal  securi- 
ty, with  at  least  two  responsible  names,  (the  firm  and  all  the 


340  CASES  IN  THE  COIJRT  OF  APPEALS 

UNIOS  BANK  OF  MARYLAND  v.    RIDOELT  — 1827. 

partners  of  a  house  being  considered  as  one  name  only,)  allow- 
ing three  days  grace  on  all  notes  and  bills  payable  at  the  bank, 
and  discount  to  be  taken  for  the  same. 

Art.  7.  That  to  entitle  a  note  or  bill  to  be  discounted  at  this 
bank,  the  maker  or  acceptor  thereof  must  usually  reside  in  the 
city  of  Baltimore  or  precincts  thereof;  and  notes  made  at  a 
distance  must  have  two  responsible  names  residing  in  the  city 
or  precincts  aforesaid 

Art.  18.  That  it  be  the  duty  of  the  president  to  pay  all  pos- 
sible attention  to  the  operations  of  the  bank;  to  take  into  his 
safe  keeping  (at  the  bank)  the  plates,  paper  moulds  and  bank 
paper;  to  superintend  the  printing  at  the  bank  of  all  bills  or 
notes  that  may  be  printed;  to  keep  a  regular  account  of  the 
bank  paper,  and  of  the  quantity  from  time  to  time  ordered  for 
impression;  to  superintend  the  duty  of  all  persons  employed  in 
the  bank;  to  sign  all  bills  and  notes  which  may  be  issued;  and 
should  this  bank  be  incorporated,  the  president  is  to  have  iij 
his  charge  and  custody,  the  seal  of  the  corporation,  and  cause 
the  same  to  be  affixed  to  all  such  instruments  and  documents, 
as  the  board  of  directors  shall  order  or  authorize;  and  do  all 
.Other  matters  and  things  that  the  law  directs. 

Art.  19.  That  it  shall  be  the  duty  of  the  cashier  to  counter- 
sign at  the  bank,  all  bills  or  notes  signed  by  the  president;  care- 
fully to  observe  the  conduct  of  the  persons  employed  under  him; 
daily  to  examine  the  settlement  of  the  cash  account  of  the 
bank;  to  count  the  money  deposited  in  the  vaults;  to  compare 
the  amount  thereof  with  the  balance  of  the  cash  account  that 
day,  and  in  case  of  disagreement,  to  report  the  same  to  the  di- 
rectors as  early  as  possible;  for  which  purpose,  if  necessary, 
the  president  may  call  a  special  meeting. 

Art.  22.  That  a  committee  of  the  board  of  directors,  consist- 
ing of  at  least  three  of  their  number,  shall,  in  rotation,  visit 
the  vaults  in  which  the  cash  and  other  valuable  effects  are  de- 
posited, at  least  once  in  every  three  months,  and  make,  or  cause 
an  inventory  of  the  same  to  be  made  in  their  presence,  to  be 
compared  with  the  books,  in  order  to  ascertain  their  agreement 
therewith,  and  make  a  report  to  the  board ;  that  on  the  door  of 
the  great  vault,  there  shall  be  three  locks,  and  that  the  presi? 
dent,  cashier  and  first  teller,  shall  each  keep  a  key. 


OF  MARYLAND.  341 


UNION  BANK  OF  MAHTLAND  v.    KIDGELY. — 1827. 

Art.  24.  That  a  book  shall  be  kept  for  the  use  of  the  board 
of  directors,  in  which  all  discounted  notes  and  bills  shall  be  en- 
tered, in  such  manner  as  to  discover  at  one  view,  on  each  dis- 
count day,  the  amount  which  any  person  is  indebted  to  the  bank, 
jon  such  notes  and  bills,  in  the  capacity  of  payer,  and  in  the 
rapacity  ,of  discounter  severally. 

Art.  26.  TJiat  the  president  and  directors  of  the  bank  afore- 
said, be  authorised  and  appointed,  and  they  are  hereby  autho- 
rised and  appointed,  to  make  and  adopt  any  further  by-laws  for 
the  government  of  said  bank,  which  they  may  think  necessary 
and  convenient,  provided  they  are  not  contrary  to  the  articles 
of  association. 

And  the  plaintiffs  further  say,  that  after  the  said  act  of  assem- 
bly, and  after  the  making  of  the  said  by-laws,  to  wit,  on  the 
thirtieth  day  of  March,  in  the  year  eighteen  hundred  and  five, 
the  said  Ralph,  in  pursuance  of  the  said  act  of  assembly,  gave 
the  bond  in  the  declaration  mentioned,  with  the  condition  there- 
in contained, to  wit,  at  the  county  aforesaid:  And  the  plaintiffs 
further  say,  that  the  said  Ralph  continued  to  be  cashier,  and  to 
act  in  the  capacity  of  cashier  of  the  Union  Bank  of  Mary* 
land,  from  the  day  last  mentioned,  until  the  twenty-fifth  day 
of  May,  in  the  year  eighteen  hundred  and  nineteen,  under  and 
in  pursuance  of  the  said  bond  last  mentioned,  to  wit,  at  the 
county  aforesaid :  And  the  plaintiffs  further  say,  that  at  a  ses* 
sion  of  the  general  assembly  of  Maryland,  begun  and  held  at 
the  city  of  Annapolis,  on  the  fourth  day  of  December,  in  the 
year  of  our  Lord,  eighteen  hundred  and  fifteen,  and  ending  on 
the  thirtieth  day  of  January,  in  the  year  eighteen  hundred  and 
sixteen,  among  other  things,  a  certain  act  of  assembly  was  pass- 
ed, entitled,  An  act  declaring  the  continuation  and  extension  of 
the  charters  of  the  several  banks  therein  mentioned;  which 
said  act  of  assembly,  (1815,  ch.  167,)  follows  in  these  words, 
to  wit: 

tfln  *ftct  declaring  the  continuation  and  extension  of  the 
Charters  of  the  several  Banks  therein  mentioned. 

WHEREAS  the  Preside/it,  Directors  and  Company,  of  the 
Bank  of  Baltimore;  the  President  and  Directors  of  tht 
Union  Bank  of  Maryland,  [and  various  other  banks  therein 
rjamed,]  have  transmitted  to  the  executive  of  this  state,  certi* 


342  CASES  IN  TtfE  COURT  OF  APPEALS 

I 

UNION  BANK.  OF  MARYLAND  v.  RIDGF.LY. — 1827 

ficates  of  their  determination  to  agree  to  and  accept  of  the  re- 
newal of  their  charters,  upon  the  terms  and  conditions  pre- 
scribed by  an  act,  entitled,  A  supplement  to  the  act,  entitled, 
An  act  to  incorporate  a  company  to  make  a  turnpike  road  lead- 
ing to  Cumberland,  and  for  the  extension  of  the  charters  of  the 
several  banks  in  the  city  of  Baltimore,  and  for  other  purposes, 
passed  at  December  session,  one  thousand  eight  hundred  and 
thirteen:  therefore,  Be  it  enacted,  by  the  General  Jlssemblgr 
of  Maryland,  That  the  charters  of,  or  the  several  acts  of  as- 
sembly incorporating  the  above  mentioned  banks,  be  and  the 
same  hereby  are  continued  and  extended  to  the  first  day  of 
January,  one  thousand  eight  hundred  and  thirty-five,  f  and  to 
the  end  of  the  session  of  the  general  assembly  next  thereafter; 
Provided,  that  nothing  herein  contained  shall  be  construed  to 
release  the  said  banks  from  the  compliance  of  the  terms  and 
conditions  prescribed  in  the  act  of  assembly,  entitled,  A  sup- 
plement to  the  act,  entitled,  An  act  to  incorporate  a  company 
to  make  a  turnpike  road  leading  to  Cumberland,  and  for  the 
extension  of  the  charters  of  the  several  banks  in  the  city  of 
Baltimore,  and  for  other  purposes,  passed  at  December  session, 
eighteen  hundred  and  thirteen,  chapter  one  hundred  and  twen- 
ty-two. 

1st.  Breach— Embezzlement.  "And  the  plaintiffs  in  fact 
say,  that  the  said  Ralph,  not  regarding  his  duty  as  cashier  as 
aforesaid,  but  fraudulently, intending  and  contriving  to  injure 
and  deceive  the  plaintiffs,  did,  on  various  days  and  times,  from 
the  day  of  the  date  of  the  said  writing  obligatory  until  the 
twenty-seventh  day  of  January,  in  the  year  eighteen  hundred 
arid  sixteen,  and  from  the  said  twenty-seventh  day  of  January, 
in  the  year  eighteen  hundred  and  sixteen,  until  the  sixth  day 
of  February,  in  the  year  eighteen  hundred  and  seventeen,  and 
from  the  said  sixth  day  of  February,  in  the  year  eighteen 
hundred  and  seventeen,  until  the  twenty-fifth  day  of  May,  in 
the  year  eighteen  hundred  and  nineteen,  privately,  fraudulent- 
ly, and  in  violation  of  his  duty  as  cashier  as  afoiesaid,  use,  em- 
bezzle, take  out,  and  otherwise  make  away  with  the  funds, 
monies  and  promissory  notes  for  the  payment  of  money,  com- 
monly called  bank  notes,  to  a  great  amount,  to  wit,  to  the  a- 
of  fifty  thousand  dollars,  at  the  county  aforesaid,  be- 


OF  MARYLAND.  343 


Uxrow  BANK  OF   .MAHTLASD  v.   RIDOF.LT  — 1827. 

longing  the  plaintiffs,  and  wherewith  the  plaintiffs  were  chargea- 
ble, and  which  cams  to  his,  the  said  Ralph's  hands,  charge 
and  custody,  as  cashier  as  aforesaid,  and  the  same  did  unjustly 
detain  and  convert  to  his  own  use,  whereby  the  plaintiffs  were 
greatly  prejudiced  and  damaged,  to  wit,  to  the  value  of  fifty 
thousand  dollars,  to  wit,  at  the  county  aforesaid,  and  this  they, 
the  plaintiffs,  are  ready  to  verify." 

The  2d.  assignment  of  breaches  was  like  the  first,  except 
that  it  charged  them  to  have  been  committed  "on  various  days 
and  times,  from  the  day  of  the  date  of  the  said  writing  obliga- 
tory, until  the  27th  of  Jaauary  1816." 

The  3d.  assignment  of  breaches  was  like  the  first,  except 
that  it  charged  them  to  have  been  committed  "on  various  dayg 
and  times,  from  the  day  of  the  date  of  the  said  writing  obliga- 
tory, until  the  6th' of  February  1817." 

The  4th.  assignment  of'breaches  was  like  the  first,  except. 
that  it  charged  them  to  have  been  committed  "on  various  days 
and  times,  from  the  day  qf  the  date  of  the  said  writing  obliga- 
tory, until  the  25th  of  May  1819,"  without  any  other  allega- 
tion of  the  time. 

5th.  Breach —  Unlawful  discount  ings.  "And  further  breach 
by  way  of  replication  to  the  said  plea  by  the  defendant  first 
above  pleaded,"  &c.  "the  plaintiffs  say,  that  the  said  Ralph, 
not  regarding  his  duty  as  cashier  as  aforesaid,  but  fraudulently 
intending  and  contriving  to  injure  and  deceive  the  plaintiffs, 
did,  on  various  days  and  times,  from  the  day  of  the  date  of  the 
sold  writing  obligatory,  until  the  twenty-seventh  day  of  Janua- 
ry, in  the  year  eighteen  hundred  and  sixteen,,  and  from  the 
twenty-seventh  day  of  January,  in  the  year  eighteen  hundred 
and  .sixteen,  until  the -sixth  day  of  February,  in  the  year  eigh- 
teen hundred  and  seventeen,  and  from  the  sixth  day  of  Februa- 
ry, in  the  year  eighteen  hundred  and  seventeen,  until  the  twen- 
ty-fifth of  May,  in  the  year  eighteen  hundred  and  nineteen, 
privately,  fraudulently,  and  in  violation  ot  his  duty  as  cashier 
as  aforesaid,  use  the  funds  and  monies  belonging  to  the  plain- 
tiffs, and  wherewith  the  plaintiffs  were  chargeable,  and  which 
came  to  the  hands,  charge  and  custody,  of  the  said  Ralph,  as 
cashier  as  aforesaid,  in  secretly  and  unlawfully  discounting 
notes  for  divers  p  ersona,  and  in  appropriating  the  profits  of 


344  CASES  IN  THfe  COT/RT  OF  APPEAtS1 

UXION  BAVK  OF  MAHYLAXD  v.   HIDGKLT. — 1827. 

such  secret  and  unlawful  discountings  to  his  owiruse,  to  a  great 
amount,  to  wit,  to  the  amount  of  fifty  thousand  dollars,  at  the 
county  aforesaid,  whereby  the  plaintiffs  were  greatly  prejudiced 
and  damaged,  to  wit,  to  the  value  of  fifty  thousand  dollars,  to 
wit,  at  the  county  aforesaid;  and  this  they,  the  plaintiffs,  are- 
ready  to  verify." 

The  6th,  7th  and  8th  breaches,  were  assigned  upon  unlaw-v 
ful  discountings  as  in  the  5th  breach,  the  time  being  laid  as  in 
the  2d,  3d  and  4th  assignments  of  breaches,  and  in  that  re- 
spect only  differing  from  the  5th  breach. 

9th.  Breach — Conspiracy,  $c.  False  Entries.  "And  for 
assigning  further  breach  by  way  of  replication  to  tne  said  plea 
by  the  defendant,  first  above  pleaded,  according,"  &.c.  "the 
plaintiffs  say?  that  the  said  Ralph  did,  on  various-  days  and 
times,  from  the  day  of  the  date  of  the  said  writing  obligatory, 
until  the  twenty-seventh  day  of  January,  in'  the  year  eighteen 
hundred  and  sixteen,  and  from  the  said  twenty-seventh  day  of 
January,  in  the  year  eighteen  hundred  and  sixteen,  until  the' 
sixth  day  of  February,  in  the  year  eighteen  hundred  and  seven- 
teen, and  from  the  said  sixth  day  of  February,  in  the  year 
eighteen  hundred  and  seventeen,  until  the  twenty-fifth  of  May, 
in  the  year  eighteen  hundred  and  nineteen,  to  wit,  at  the  coun- 
ty aforesaid,  falsely  and  fraudulently  combine,  collude  and  con- 
spire, with  a  certain  Andrew  Burt,  teller  of  the  said  bank,  and 
a  certain  Pierce  L.  Tanner,  book-keeper  in  the  said  bank, 
falsely  and  fraudulently,  and  in  violation  of  his  duty  as  cashier 
as  aforesaid,  to  lend  out  and  give  out,  and  in  pursuance  thereof, 
did  fraudulently  lend  out  and  give  out  large  sums  of  money 
belonging  to  the  plaintiffs,  and  others,  wherewith  the  plaintiffs 
were  chargeable,  and  which  came  to  the  hands,  charge  and -cus- 
tody of  the  said  Ralph,  as  cashier  as  aforesaid,  and  which  he 
has  not  yet  duly  accounted  tor,  paid,  delivered  or  discharged 
himself  from;  amounting  in  all  to  a  large  sum  of  money,  to 
wit,  to  the  sum  of  fifty  thousand  dollars,  to  divers  persons,  and 
wrongfully  and  fraudulently  to  appropriate,  and  then  and  there, 
in  pursuance  thereof,  did  fraudulently  appropriate  the  funds 
and  monies  of  the  said  bank  to  their  own  private  purposes, 
whereby  the  funds  and  monies  of  the  said  bank  were  wasted, 
j  misspent,  and  otherwise  made  way  with,  and  un- 


OF  MARYLAND.  345 


Uwios  BASK  OP  MAnrtAND  v.  RIDOELT.— -1827. 


justly  detained  by  the  said  Ralph,  and  by  other  persons  through 
his  means,  privity  and  procurement,  to  a  great  amount,  to  wit, 
to  the  amount  of  fifty  thousand  dollars,  at  the  county  aforesaid. 
And  the  plaintiffs  in  fact  say,  that  neither  the  said  Ralph,  nor 
the  said  Robert  Ptirviance,  nor  the  said  Daniel  Delozier,  nor 
the  said  Edward  Johnson,  nor  Nicholas  G.  Ridgcly,  nor  either 
nor  any  of  them,  nor  either  nor  any  of  their  heirs,  executors 
or  administrators,  has  or  have  yet,  either  made  or  given,  or 
caused  to  be  made  or  given  unto  the  plaintiffs,  or  their  succes- 
sors, full  satisfaction  and  recompense  of  and  for  such  monies 
and  funds  belonging  to  the  plaintiffs,  or  to  other  persons,  where- 
with the  plaintiffs  are  chargeable,  so  as  aforesaid  wasted,  mis- 
spent, embezzled  and  otherwise  made  away  with,  and  unjustly 
detained  by  the  said  Ralph,  and  by  other  persons  through  his 
means,  privity  or  procurement,  or  any  part  thereof.  And  the 
plaintiffs  further  say,  that  the  said  Ralph,  in  order  to  conceal 
the  said  secret,  and  unlawful  and  fraudulent  doings  from  the 
plaintiffs,  at  divers  days  and  times  after  the  date  of  the  said 
writing  obligatory,  and  while  he  continued  cashier  of  said  bank 
as  aforesaid,  made  or  caused,  or  knowingly  permitted  to  be 
made,  certain  false  and  deceptious  entries  in  the  books  of  the 
said  bank,  in  violation  of  his  duty  as  aforesaid,  whereby  the 
plaintiffs  were  greatly  damaged,  to  wit,  to  the  value  of  fifty 
thousand  dollars,  to  wit,  at  the  county  aforesaid;  and  this  they, 
the  plaintiffs,  are  ready  to  verify. " 

The  10th,  llth  and  12th  breaches,  were  assigned  upon  con- 
spiracy with  the  clerks  and  false  entries  as  in  the  9th  breach, 
the  time  being  laid  as  in  the  2d,  3d,  and  4th  assignments  of 
breaches,  and  in  that  respect  only,  differing  from  the  9th  breach. 

13th.  Breach — Over  Drafts.  <-And  for  assigning  further 
breach,  by  way  of  replication  to  the  said  plea,  by  the  defen- 
dant first  above  pleaded,  according  to  the  form  of  the  statute  in 
•such  case  made  and  provided,  the  plaintiffs  say,  that  the  said 
Ralph,  not  regarding  his  duty  as  cashier  as  aforesaid,  but 
fraudulently  intending  and  contriving  to  injure  and  deceive  the 
plaintiffs,  did,  at  divers  days  and  times,  from  the  day  of  the 
date  of  the  said  writing  obligatory,  until  the  twenty-seventh 
day  of  January,  in  the  year  eighteen  hundred  and  sixteen,  and 
from  the  twenty-seventh  day  of  January,  \\\  the  year  eighteen 
TOL.  i,  44 


346  CASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK.  OK  MARYLAND  y.  KIDOELY. — 1827. 

hundred  and  sixteen,  until  the  sixth  day  of  February,  in  the 
year  eighteen  hundred  and  seventeen,  and  from  the  said  sixth 
day  of  February,  in  the  year  eighteen  hundred  and  seventeen, 
until  the  twenty-fifth  day  of  May,  in  the  year  eighteen  hun- 
dred and  nineteen,  during  which  several  times  the  said  Ralph 
continued  cashier  of  the  said  bank,  frequently,  and  from  time 
to  time,  wrongfully  and  unlawfully  take  out  of  said  bank,  di- 
vers sums  of  money,  to  wit,  the  sum  of  fifty  thousand  dollars, 
at  the  county  aforesaid,  by  draughts  and  checks  upon  the  said 
bank  and  otherwise,  when  he,  the  said  Ralph,  had  not  money 
deposited  in  the  said  bank,  wherewith  to  pay  the  said  draughts 
or  checks,  and  that  during  the  said  time  the  said  Ralph  did 
not,  from  time  to  time,  make  and  give  unto  the  plaintiffs  and 
their  successors,  a  just  and  true  account  in  writing  of  all  such 
sum  or  sum§  of  money,  bills  and  notes,  which  did  from  time 
to  time  come  into  his  hands,  charge  and  custody,  of  and  be- 
longing to  the  plaintiffs,  or  their  successors,  or  to  other  person 
or  persons,  wherewith  they,  the  plaintiffs  or  their  successors, 
stood  chargeable,  whereby  the  plaintiffs  suffered  great  damage, 
to  wit,  to  the  value  of  fifty  thousand  dollars,  at  the  county  afore- 
said; and  this  they  are  ready  to  verify." 

The  14th,  15th  and  16th  breaches  were  assigned  upon  over 
draughts  as  in  the  13th  breach,  the  time  being  laid  as  in  the 
iid,  3d  and  4lh  assignments  of  breaches,  and  in  that  respect 
only,  differing  from  the  13th  breach. 

17th.  Breach — Embezzlement  of  a  Check,  2lst  Novem- 
ber, ISIS.  "And  for  assigning  further  breach,  according,"  &c. 
«by  way  of  replication  to  the  said  first  plea,  by  the  defendant, 
above  pleaded,  the  plaintiffs  say,  that  the  said  Ralph,  with  a 
view  to  injure  and  defraud  the  plaintiffs,  and  in  violation  of  his 
duty  as  cashier  as  aforesaid,  did,  on  the  twenty-first  day  of  No- 
vember, in  the  year  eighteen  hundred  and  eighteen,  to  wit,  at 
the  county  aforesaid,  take  from  the  funds  and  monies  of  the 
said  bank,  the  sum  of  eight  thousand  three  hundred  and  thirty 
dollars,  and  fraudulently  charged  or  caused  the  same  to  be 
charged  to  a  certain  William  Dandridge,  cashier  of  a  certain 
bank,  styled  " The  Bank  of  Virginia"  which  said  sum  ot 
money  was  never  forwarded  to  the  said  William  Dandridge, 
or  to  any  person  for  him,  but  by  the  said  Ralph  was  fraudu- 


OF  MARYLAND*  347 


UVTOJT  RANK  OF   MARYLAND  v.    KIDHELT  — 1827. 

Jently  and  wrongfully  appropriated  to  his  own  private  use,  the 
said  Ralph  having  charged  or  caused  the  same  to  he  charged  to 
the  said  William  Dandridge  the  hetter  to  conceal  his  fraudu- 
lent and  wrongful  purpose  from  the  plaintiff*,  in  breach  and  in 
violation  of  his  duty  as  aforesaid,  and  to  the  great  prejudice 
and  damage  of  the  plaintiffs,  to  wit,  to  the  value  of  ten  thousand 
dollars,  at  the  Bounty  aforesaid^  and  this  they  are  ready  to 
verify." 

18th.  Breach — Another  Embezzlement,  l9th,McrchlS18, 
"And  for  assigning  further  breach,  according,"  &c.  "by  way 
of  replication  to  the  said  first  plea  by  the  defendant  above 
pleaded,  the  plaintiffs  say,  that  the  said  Ralph,  fraudulently 
and  unlawfully  intending  to  injure  and  deceive  the  plaintiffs 
and  in  violation  of  his  duty  as  cashier  as  aforesaid,,  did,  on  the 
nineteenth  day  of  March,  in  the  year  eighteen  hundred  and 
eighteen,  take  from  the  funds  and  monies  of  the  said  bank,  the 
sum  of  seven  thousand  five  hundred  and  four  dollars  and  eighty 
rents,  and  fraudulently  and  unjustly  appropriated  the  same  to 
his  own  private  uses,  which  said  sum  of  money  the  said  Ralph, 
with  a  view  to  deceive  and  defraud  the  plaintiffs,  did  falsely 
charge  or  cause  to  be  charged  in  the  books  of  the  said  bank,  as 
for  a  certain  bill  of  exchange,  alleged  by  him  to  have  been 
bought  by  the  plaintiffs  of  a  certain  John,  Goading,  and  which 
the  said  Ralph  pretended  to  have  remitted  to  a  certain  Thomas 
Williamson,  cashier  of  a  certain  bank  in  the  borough  of  Aor- 
folk,  styled  "JZ  Branch  of  the  Sank  of  Virginia;"  which 
.said  bill  of  exchange,  or  pretended  bill  of  exchange,  the  plain- 
tiffs say,  never  was  remitted  to  the  said  Thomas  Williamson, 
but  that  the  said  Ralph  falsely  charged  the  same  to  the  said 
Thomas  Williamson,  as  a  pretence  to  conceal  the  said  fraudu- 
lent appropriation  from  the  plaintiffs,  in  breach  and  violation  of 
his  duty  as  aforesaid,  whereby  the  plaintiffs  suffered  great 
damage,  to  wit,  to  the  value  of  ten  thousand  dollars,  at  the 
county  aforesaid;  and  this  they  are  ready  to  verify." 

19th.  Breach — False  Statements.  "And  for  assigning 
further  breach,  according,"  &c.  "by  way  of  replication,  to  the 
said  plea  by  the  defendant  first  above  pleaded,  the  plaintiffs  say, 
lhat  the  said  Ralph,  with  a  view  to  deceive  and  defraud  the 
plaintiffs,  and  in  violation  oj  hi*  duty  as  aforesaid,  did,  at  vari- 


348  CASES  IK  THE  COURT  OF  APPEALS 

UNION  BANK  OF   MARYLAND  v.  RIDGKLT. — 1827. 

ous  days  and  times,  from  the  day  of  the  date  of  the  said  writ- 
ing obligator)',  until  the  twenty-seventh  day  of  January,  in 
the  year  eighteen  hundred  and  sixteen,  and  from  the  said  twen- 
ty-seventh day  of  January,  in  the  year  eighteen  hundred  and 
sixteen,  until  the  sixth  day  of  February,  in  the  year  eighteen 
hundred  and  seventeen,  and  from  the  said  sixth  day  of  Februa- 
ry, in  the  year  eighteen  hundred  and  seventeen,  until  the  twen- 
ty-fifth day  of  May,  in  the  year  eighteen  hundred  and  nine- 
teen, to  wit,  at  the  county  aforesaid,  knowingly  make  divers 
false  statements  of  the  condition  of  the  said  bank  to  the  plain- 
tiffs, frequently,  wilfully  and  fraudulently  charging  or  causing 
to  be  charged,  divers  individuals  and  banks,  with  large  sums  of 
money  as  due  and  owing  to  the  plaintiffs,  than  the  said  indi- 
viduals or  banks  in  fact  owed  or  were  indebted  to  the  plain- 
tiffs, to  wit,  the  sum  of  fifty  thousand  dollars,  whereby  the 
plaintiffs  suffered  great  damage,  to  wit,  to  the  value  of  fifty 
thousand  dollars,  at  the  county  aforesaid;  and  this  they  are 
ready  to  verify." 

The  20th,  21st  and  22d  breaches,  were  assigned  upon  false 
statements  made  of  the  condition  of  the  bank,  as  in  the  19th 
breach,  the  time  being  laid  as  in  the2d,  3d  and  4th  assignments 
of  breaches,  and  in  that  respect  only,  differing  from  the  19th 
breach. 

23d.  Breach — Negligence.  "And  for  assigning  further 
breach  by  way  of  replication  to  the  said  plea  by  the  defendant 
first  above  pleaded,"  &c.  "the  plaintiffs  say,  that  the  said  Ralph, 
on  various  days  and  times  since  the  day  of  the  date  of  the  said 
•writing  obligatory,  and  while  it  was  in  full  force  and  virtue, 
and  during  the  time  the  said  Ralph  was  cashier  as  aforesaid, 
and  before  the  commencement  of  this  suit,  did  not  carefully 
examine  the  conduct  of  the  persons  employed  under  him  by 
the  plaintiffs  as  it  was  his  duty  to  have  done,  and  as  he  was  re* 
quired  by  the  said  by-laws  to  have  done,  but  to  do  so,  omitted 
and  neglected,  by  which  said  omission  and  neglect  of  the  said 
JRalph,  the  plaintiffs  were  damaged  to  a  great  amount,  to  wit, 
to  the  amount  of  fifty  thousand  dollars,  to  wit,  at  the  county 
aforesaid;  and  this  they  are  ready  to  verify." 

24th.  Breach — Omitted  to  count  the  money,  &c.  "And 
for  assigning  further  breach,  according,"  &c.  "by  way  of  re- 


OF  MARYLAND.  349 


UNION  BANK  OF    MARYLAND  v.  RIBGELT. — 1827. 

plication  to  the  said  plea  by  the  defendant  first  above  pleaded, 
the  plaintiffs  say,  that  the  said  Ralph,  in  violation  of  his  duty 
as  cashier  as  aforesaid,  at  various  days  and  times,  since  the 
date  of  the  writing  obligatory,  and  whilst  the  same  was  in  full 
force  and  virtue,  and  during  the  time  the  said  Ralph  was  em- 
ployed by  the  plaintiffs  as  cashier  as  aforesaid,  and  before  the 
commencement  of  this  action,  did  not,  when  it  was  his  duty 
to  have  done  so,  count  the  money  deposited  in  the  vaults  of  the 
said  bank,  and  compare  the  amount  thereof  with  the  balance  of 
the  cash  account  of  the  said  bank,  in  the  manner  he  ought  to 
have  done,  but  omitted  and  neglected  so  to  do,  whereby  large 
sums  of  money,  to  the  amount  of  fifty  thousand  dollars,  where- 
with the  plaintiffs  were  chargeable,  and  which  were  in  the 
charge  and  custody  of  the  said  Ralph  as  cashier  as  aforesaid, 
where  wholly  lost,  and  the  plaintiffs  greatly  prejudiced  and 
damaged,  to  wit,  to  the  value  of  fifty  thousand  dollars,  to  wit, 
at  the  county  aforesaid;  and  this  they  are  ready  to  verify." 

25th.  Breach. — Did  not  compare  the  books,  &c.  "And  for 
assigning  further  breach  by  way  of  replication  to  the  said  plea 
by  the  defendant  first  above  pleaded,  according,"  &c.  "the 
plaintiffs  say,  that  the  said  Ralph,  in  violation  of  his  duty  as 
cashier  as  aforesaid,  at  various  times  during  the  time  he  was 
cashier  as  aforesaid,  and  after  the  date  of  the  said  writing  obliga- 
tory, and  whilst  the  same  continued  in  full  force  and  virtue, 
and  before  the  commencement  of  this  action,  altogether  omit- 
ted and  neglected  to  examine  and  compare  the  several  books  of 
account  of  the  bank,  which  were  kept  by  the  clerks  and  subor- 
dinate agents  of  the  said  ba  :k.  under  the  superintendance  and 
direction  of  the  said  Ralph,  as  cashier  as  aforesaid,  as  it  was  his 
duty  to  have  done,  whereby  material  errors,  mistakes,  false 
statements  and  disagreements  arose  and  occurred  therein,  and 
large  sums  of  money,  wherewith  the  plaintiffs  were  chargeable, 
and  which  came  to  the  hands,  charge  and  custody  of  the  said 
Ralph  as  cashier,  were  thereby  wholly  lost,  to  the  amount  of 
fifty  thousand  dollars,  and  the  plaintiffs  have  thereby  sustained 
damage  to  the  value  of  fifty  thousand  dollars,  to  wit,  at  the 
•  county  aforesaid;  and  this  they  are  ready  to  verify." 

26th.  Breach—Did  not  examine  cash  account.     <4And  for 
assigning  further  breach,  by  way  of  replication  to  the  said  plea, 


350  CASES  IX  THE  COURT  OF  APPEALS 

UNION  BANK  OF  MAnYLAxn  v.  KIPGF.T.T. — 1827 

by  the  defendant  first  above  pleaded,  according,'"'  &c.  "the  plain- 
tiffs say,  that  the  said  Ralph,  in  violation  of  his  duty  as  cashier 
ns  aforesaid,  during  the  time  he  was  employed  hy  the  plaintiffs 
as  cashier  as  aforesaid,  and  after  the  date  of  the  said  writing, 
obligatory,  and  when  the  same  continued  in  full  force  and  virtue, 
tind  before  the  commencement  of  this  suit,  did  not  daily  ex- 
£?mine  the  settlement  of  the  cash  account,  as  it  was  his  duty  to 
have  done;  but  wholly  neglected  and  omitted  to  do  so,  where- 
by the  plaintiffs  have  sustained  great  damage,  to  the  amount  and 
value  of  fifty  thousand  dollars,  to  wit,  at  the  county  aforesaid; 
tind  this  they  are  ready  to  verify." 

27th.  Breach — Negligence  in  not  reporting  deficiencies. 
'"And  for  assigning  further  breach,  by  way  of  replication  to  the 
said  plea,  by  the  defendant  first  above  pleaded,  according  to  the 
form  of  the  statute  in  such  case  made  and  provided,  the  plain- 
tiffs say,  that  after  the  date  of  the  said  writing  obligatory,  and 
while  the  same  was  in  full  force  and  virtue,  and  during  the  time 
the  said  Ralph  was  employed  by  the  plaintiffs,  as  cashier  as 
aforesaid,  and  before  the  commencement  of  this  suit,  at  various 
days  and  times,  there  were  large  and  improper  deficiencies  of  the 
money  in  the  vaults  of  the  said  bank,  which  the  said  Ralph  as 
cashier  as  aforesaid,  ought  to  have  reported  to  the  directors  of 
the  said  bank,  but  which,  on  the  contrary,  in  violation  of  his 
•duty  as  cashier  as  aforesaid,  he  wholly  omitted  and  neglected 
to  do,  by  which  omission  and  neglect  the  plaintiffs  have  sustain- 
ed great  damage,  to  wit,  to  the  value  of  fifty  thousand  dollars, 
to  wit,  at  the  county  aforesaid;  and  this  the  plaintiffs  are  ready 
to  verify." 

28th,  Breach — Did  not  account,  fyc.  "And  for  assigning 
further  breach,  by  way  of  replication  to  the  said  plea,  by  the 
defendant  first  above  pleaded,  according,"  &c.  "the  plaintiffs 
say,  that  the  said  Ralph  since  the  date  of  the  said  writing 
obligatory,  and  while  the  same  continued  in  full  force  and  vir- 
tue, and  during  the  time  he  wag  employed  as  cashier  as  afore- 
said, and  before  the  commencement  of  this  suit,  did  not,  from 
time  to  time,  mike  and  give  unto  the  plaintiffs,  a  just  and  true 
account  in  writing  of  all  such  sums  of  money,  as  from  time  to 
time  came  to  his  hands,  charge  and  custody,  as  cashier  as  afore- 
said, wherewith  the  plaintiffs  were  chargeable,  ss  it  was  his 


OF  MARYLAND.  351 

UNION  HANK  OF  MAHILANM)  v.    KIIIUKLIT.  — 1827. 

duty  to  have  done,  but  wholly  omitted  and  neglected  so  to  do, 
by  which  omissions  and  neglect,  the  plaintiffs  have  sustained 
great  damage,  to  the  amount  and  value  of  fifty  thousand  dollars, 
to  witj  at  tiie  county  aforesaid;  and  this  they  are  ready  to  veri- 
fy.» 

29th.  Breach — Received  money,  $c.  Did  not  pay,  $c.  "And 
for  assigning  further  breach,  according,"  &(,.  "by  way  of  re- 
plication to  the  first  plea  by  the  defendant  above  pleaded,  the 
plaintiffs  say,  that  the  said  Ralph,  since  the  date  of  the  said 
writing  obligatory,  and  while  the  sanie  continued  in  full  force 
and  virtue,  and  during  the  time  he  was  employed  and  acted  as 
cashier  as  aforesaid,  and  before  the  commencement  of  this  suit, 
did  from  time  to  time,  receive  into  his  charge  and  custody  as 
cashier  as  aforesaid,  divers  large*  sums  of  money,  bills  and 
notes,  to  the  amount  and  value  of  fifty  thousand  dollars,  belong- 
ing to  the  plaintiffs,  and  wherewith  they  were  chargeable, 
which  the  said  Ralph  has  not  since  paid  or  delivered  to  the 
plaintiffs,  or  otherwise  discharged  himself  from,  as  he  ought  to 
have  done,  but  so  to  do,  hath  wholly  omitted,  neglected  and  re- 
fused; whereby  the  plaintiffs  have  susutained  great  damage,  to 
wit,  to  the  value  of  fifty  thousand  dollars,  to  wit,  at  the  county 
aforesaid;  and  this  they  are  ready  to  verify." 

30th.  Breach — Combination  to  take  money,  $c.  "And  for 
assigning  further  breach,  by  way  of  replication  to  the  said 
plea,  by  the  defendant  first  above  pleaded,  according,"  &c.  "the 
plaintiffs  say,  that  the  said  Ralph,  since  the  date  of  the  said 
writing  obligatory,  and  while  the  same  continued  in  full  force 
and  virtue,  and  during  the  time  he  was  employed  and  acted  as 
cashier  as  aforesaid,  to  wit,  at  the  county  aforesaid,  did  falsely 
and  fraudulently  combine,  collude  and  conspire  with  a  certain 
Andrew  Hurt,  teller  of  the  said  bank,  and  a  certain  Pierce  L. 
Tanner,  book-keeper  in  the  said  bunk,  falsely  and  fraudulently, 
and  in  violation  of  his  duty  as  cashier  as  aloresaid,  to  take  out 
of  the  said  bank,  a  certain  sum  of  money,  to  wit,  the  sum  of 
enght  thousand  dollars,  which  had  been  before  that  time  depo- 
sited by, and  belonging  to  a  certain  »flmos  >ft.  Williams,  and  in 
pursuance  thereof  did  fraudulently  take  out  of  the  said  bank, 
the  said  sum  of  money,  to  wit,  the  sum  of  eight  thousand  dol- 
&rs,  which  had  been  bef.oro  that  Ura<?  deposited  as  aforesaid,  the 


352*  CASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK  OF  MARYLAND  v.   KIUOEI.T  — 1827. 

said  sum  of  money  being  money  wherewith  the  plaintiffs  were 
chargeable,  and  which  came  to  the  hands,  charge  and  custody 
of  the  said  Ralph  as  cashier  as  aforesaid,  and  which  he  has  not 
yet  duly  accounted  for,  paid,  delivered  or  discharged  himself 
from,  whereby  the  plaintiffs  were  greatly  damaged,  to  wit,  to 
the  value  of  fifty  thousand  dollars,  to  wit,  at^the  county  afore- 
said; and  this  they  are  ready  to  verify:  wherefore  they  pray 
judgment,  and  their  debt  aforesaid,  together  with  the  damages 
on  occasion  of  the  detention  thereof,  to  be  adjudged  to  them, 
&c." 

Replication  to  the  second  plea.  This  replication  assigned 
similar  breaches  to  those  assigned  under  the  replication  to  the 
first  plea. 

The  plaintiffs  demurred  generally  to  the  defendant's  third, 
fourth)  and  Jifth  pleas,  to  which  there  were  joinders  in  de- 
murrer. 

The  defendant  demurred  generally  to  the  1st,  4th,  5th,  8th, 
9th,  12th,  13th,  16th,  17th,  18th,  19th  and  22d  breaches  as- 
signed in  the  replications  to  they?;**/  and  second  pleas,  to  which 
there  were  joinders  in  demurrer.  To  the  other  breaches,  viz. 
the  2d,  3d,  6th,  7th,  10th,  llth,  14th,  15th,  20th,  21st,  23d, 
24th,  25th,  26th,  27th,  28th,  29th  and  30th,  in  the  1st  and  2d 
replications  of  the  plaintiffs  to  the  1st  and  2d  pleas,  the  defend- 
ant rejoined,  denying  the  matter  of  each  of  the  said  breaches 
directly,  concluding  each  rejoinder  to  the  country,  and  on 
which  issues  of  fact  were  joined 

The  cause  was  then,  on  the  prayer  of  the  parties  to  amend 
their  pleading,  continued  for  several  terms,  and  at  the  term  when 
the  cause  was  tried,  the  defendant  asked  and  obtained  turther 
leave  to  amend  his  pleadings.  He  then  filed  the  following  plea, 
in  addition  to  those  before  filed,  viz.  Sixth  plea.  "And  the  said 
Nicholas  G.  Ridgely,  by  leave  of  the  court  here,  according 
to-  the  form  of  the  statute  in  such  case  made  and  provided, 
comes  and  further  defends  the  wrong  and  injury  when,  &c.  and 
•ays  that  the  said  plaintiffs  their  action  aforesaid  thereof  against 
him,  the  said  Nicholas,  ought  not  to  have  or  maintain,  because 
he  says  that  on  or  about  the  thirtieth  day  of  March,  in  the  year 
of  our  Lord  eighteen  hundred  and  five,  to  wit,  at  the  county 
aforesaid,  the  said  supposed  writing  obligatory  was  preseated 


6F  MARYLAND.  353 


UNIOX  UAXK  OF   MARILANU  v.    UIDGELY  — 1827. 

and  shown  by  the  said  Ralph   to  the   said    Nicholas,    and  the 
said  Nicholas  was  then  and  there  requested  by  the  said  Ralph 
to  join  in  the  said  supposed   writing   obligatory  as  co-security 
with  other  securities,  for  him,  the  said  Ralph;  and  the  said  Ni- 
cholas assenting  to  such  request   of  the  said  Ralph,    did  then 
and  there  sign  and  seal  the  said  supposed   writing   obligatory, 
and  returned  the  same  to  the  said  Ralph,  to  be  by  him  submit- 
ted to  the  said  President  and  Directors  of  the,  Union  Bank 
(the  plaintiffs  in  this  cause)   for  their  approbation   and   accept- 
ance; and  if  the  said  supposed  writing  obligatory  should  be  ap- 
proved and  accepted  by  the  plaintiffs,    that  then  and   in  such 
case  the  said  supposed  writing  obligatory  was  to  be  considered 
and  delivered  as  the  act  and  deed    of  him,    the  said  Nicholas, 
and  not  otherwise.     And  the  said  Nicholas  avers,  that  the  said 
supposed  writing  obligatory  never  was  approved   and  accepted 
by  the  plaintiffs  by  any  act  in  their  corporate  capacity;   and  so 
the  said  Nicholas  says  that  the  said  supposed  writing  obligato- 
ry is  not  his  act  and  deed;  and  of  this  he  puts  himself  upon  the 
country,  and  so  forth."     This  plea  was  verified  by  the  oath  of 
the  defendant.     The  plaintiffs  joined  in  issue. 

The  county  court  rendered  judgment  for  the  defendant  on  the 
demurrers  to  the  1st,  4th,  5th,  8th,  9th,  12th,  13th,  16th,  17th, 
18th,  19th  and  22d  breaches  to  the  1st  and  3d  pleas;  and  ren- 
dered judgment  for  the  plaintiffs  on  the  demurrers  to  3d,  4th 
and  5th  pleas  of  the  defendant.  The  plaintiffs  then  suggested  simi- 
lar breaches  to  the  defendant's  3d,  4th  and  5th  pleas  as  they 
had 'assigned  to  the  1st  and  2d  pleas.  Upon  the  issues  joined  up- 
on the  several  rejoinders  of  the  defendant  to  the  several  breach- 
es assigned  by  the  plaintiffs  to  the  first  and  second  pleas,  and 
to  the  issue  joined  to  the  sixth  plea,  the  jury  found  for  the  de- 
fendant, although  in  the  record  the  verdicts  were  informally 
Stated  by  the  clerk,  and  which  by  consent  of  the  parties  were 
amended.  The  jury  also  returned  the  following  inquisition  as 
to  the  breaches  suggested  to  the  3d,  4th  and  5th  pleas,  viz. 
"We  the  undersigned  jurors,  being  duly  empannelled,  under 
and  by  virtue  of  an  order  of  this  court,  for  inquiring  at  bar,  to 
assess  the  damages  sustained  by  the  plaintiffs  by  reason  of  any 
breaches  assigned  and  suggested  by  them  in  this  cause,  upon 
which  issues  in  fact  were  not  joined,  and  verdict  given  for  the 
VOL.  ft  45 


354  'CASES  IN  THE  COURT  OF  APPEALS 

UNioff  BANK  OF  MARYIAND  v.  KIDGELT. — 1827. 

defendant,  and  being  duly  sworn  thereto,  in  open  court,  having 
made  inquiry  thereof,  do,  upon  our  corporal  oaths,  find  as  fol- 
lows; that  is  to  say,  upon  the  second  breach,  the  third,  sixth, 
seventh,  tenth,  eleventh,  fourteenth,  fifteenth,  twentieth, 
twenty-first,  twenty-third,  twenty-fourth,  twenty-fifth,  twen- 
ty-sixth, twenty-seventh,  twenty-eighth,  twenty-ninth  and 
thirtieth  breach,  assigned  and  suggested  by  the  plaintiffs  under 
the  third  plea;  and  upon  the  same  breaches,  numbered  as  afore- 
said, and  assigned  and  suggested  by  the  plaintiffs  under  the 
iburth  plea;  and  upon  the  same  breaches,  numbered  as  afore- 
said, and  assigned  and  suggested  by  the  plaintiffs  under  the 
fifth  plea,  that  the  plaintiffs  have  sustained  and  proved  damage 
to  have  been  sustained  by  them,  and  under  the  direction  of  the 
court,  the  jury  find  for  the  plaintiffs,  and  they  assess  the  da- 
mages of  the  plaintiffs  to  one  cent,  and  no  more,  on  each  breach 
above  mentioned.  In  witness  whereof,  the  undersigned  jurors 
have  to  this  inquisition  set  their  hands  and  seals,  in  open  court, 
this  twelfth  day  of  May,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  twenty-four."  Signed  and  sealed  by  the  ju- 
rors. The  plaintiffs  then  moved  the  court  to  order  judgment 
to  be  entered  upon  the  said  inquisition.  Which  motion  the 
court  overruled,  and  directed  judg-nent  to  be  entered  for  the 
defendant. 

Bills  of  Exceptions.  I.  The  defendant,  by  his  counsel,  just 
previous  to  the  swearing  of  the  jury,  in  the  above  case,  at  this 
present  term,  asked  the  leave  of  the  court  to  amend  his  plead- 
ings by  pleading  and  filing  the  following  plea,  numbered  6. 
[Which  was  a  copy  of  the  sixth  plea  heretofore  inserted.]  To 
the  making  which  amendment,  the  plaintiffs,  by  their  counsel, 
objected,  because  said  plea  came  too  late,  and  was  incompatible 
and  inconsistent  with  the  defendant's  other  pleas,  and  against 
the  eleventh  and  thirty-third  of  the  standing  rules  of  this  court, 
viz. 

"Rule  XI.  The  20th  day  of  February,  and  the  1st  day  of 
September,  shall  be  the  rule  days;  and  whenever  a  rule  is  laid 
to  declare  or  to  plead,  the  declarations  and  pleadings  are  to  be 
filed  on  or  before  the  rule  day;  when  a  declaration,  or  any  part 
of  the  pleadings  is  filed  on  or  before  the  rule  day,  in  pursuance 


OF  MARYLAND. 


UNION  BANK  OF   MARYLAND  v.  RIJIOKI.T. — 1827. 

of  a  rule  previously  laid,  the  adverse  party  shall  be  bound  to 
answer  the  same,  and  to  file  the  pleadings  necessarily  arising 
in  succession,  on  or  before  the  second  day  of  the  next  succeed- 
ing term,  either  party  failing  to  comply  with  this  rule,  may 
have  judgment  of  non  pros,  or  by  default,  entered  up  against 
him,  whenever  the  action  is  called,  upon  the  first  going  over 
the  docket;  but  the  general  issue  plea  may  be  pleaded  by  a  de- 
fendant at  any  time  before  judgment  by  default  is  entered 
against  him,  although  he  hath  not  pleaded  before  the  rule  day; 
this,  however,  will  never  be  considered  as  a  reason  to  delay 
the  trial." 

"Rule  XXXIII.  No  incompatible  pleas  hhall  be  received;  as 
non  assumpsit  and  tender;  non  assumpsit  and  release;  non 
assumpsit  and  infancy;  liberum  tenementum  and  justificati- 
on; n  il  debet  and  nil  habuit  in  tenement  is;  not  guilty  and 
liberum  tenementum;  not  guilty  and  license;  non  estfactum 
and  payment  or  set  off,  and  non  est  fact  urn  and  release."  But 
the  Court,  [Archer,  Ch.  J.  and  Hanson  and  Ward,  A.  J.]  over- 
ruled the  objection,  and  gave  the  defendant  leave  to  amend  his 
pleadings  in  the  manner  aforesaid,  by  filing  said  plea.  The 
plaintiffs  excepted. 

2.  On  the  trial  of  this  cause,  the  plaintiffs  to  support  the  is- 
sues on  their  part,  produced  as  a  witness,  Henry  Payson,  to 
prove  that  lie  was  president  of  the  Union  Hank  of  Maryland 
from  the  27th  April  1812,  until  the  27th  May  1819,  and  there- 
after; and  that  Ralph  Higginbothom  was  acting  as  cashier  of 
said  bank  from  its  first  organization,  until  the  27th  May  1819; 
that  a  certain  book  now  shown  to  him  with  the  words  "by- 
laws," printed  in  gilt  letters  on  the  back  thereof,  and  the  same 
words  on  the  1st  page  thereof,  which  it  is  agreed  shall  be  part 
of  this  bill  of  exceptions,  was,  during  the  time  he  was  presi- 
dent of  said  bank,  one  of  the  books  of  the  bank,  and  that  the 
rules  therein  contained  (and  which  it  is  admitted  are  truly 
transcribed  in  the  plaintiffs'  replication,)  were  always  consider- 
ed by  the  directors  and  officers  of  the  bank,  as  the  by-laws  of 
the  bank,  and  under  which  the  said  directors  and  officers  always 
acted,  and  that  he  as  president  of  the  bank  was  the  depository 
of  the  said  book,  and  that  said  by-laws  in  said  book,  were  in 


356        CASES  IN  THE  COURT  OF  APPEALS 

UNION  BAJTK  or  MARTLAXD  v.  RIDGELT.  — 1827. 

•»» 

the  handwriting  of  the  said  Higginbothom;  and  that  said  Pay* 
son  (the  witness,)  was  summoned  as  a  witness  by  both  parties, 
and  examined  without  objection,  by  plaintiffs,  and  cross  exa- 
mined by  defendant  at  a  former  trial  of  this  cause,  at  March 
term  of  this  court,  1822,  and  that,  to  the  best  of  his  recollec- 
tion, he  stated  at  said  former  trial,  that  he,  the  witness  was,  dur- 
ing all  the  time  aforesaid,  owner  of  stock  in  said  bank;  and  the 
said  witness  being  now  duly  sworn,  stated  that  he  is  now  a 
stockholder  in  said  bank,  and  has  no  recollection,  that  when  he 
was  examined  as  above  stated,  at  the  former  trial  of  this  cause, 
he  was  then  examined  as  to  the  tact  of  his  being  a  stockholder 
in  said  bank,  but  that  he  has  every  reason  to  believe  that  the 
defendant  and  his  counsel  then  knew  that  he  was  a  director  and 
stockholder  in  the  said  bank;  and  thereupon  the  defendant,  by 
his  counsel  objected  to  the  said  witness  as  incompetent  to  prove 
any  of  the  matters  aforesaid,  except  that  he  is  a  stockholder, 
and  stated  himself  on  his  examination  at  the  said  former  trial, 
to  have  been  then  a  stockholder.  Which  objection  the  court 
sustained,  and  excluded  the  witness.  The  plaintiffs  excepted. 

3.  At  the  trial  of  this  cause,  the  plaintiffs,  to  prove  the  issue 
on  their  part,  offered  in  evidence — First.  A  paper  entitled 
"Articles  of  Association  of  the  Union  Bank  of  Maryland,'1 
which  paper  it  is  admitted  by  the  defendant,  contains  the  origi- 
nal articles  of  association,  under  which  the  bank  transacted  busi- 
ness prior  to  the  passage  of  the  act  of  incorporation,  and  which 
paper  it  is  agreed  shall  be  herewith  filed  as  a  part  of  this  excep- 
tion. Second.  The  plaintiffs  produced  a  book,  on  the  back  of 
which  is  printed  in  gilded  letters,  the  words  "by-laws,"  which 
book  is  herewith  filed,  and  is  to  be  considered  a  part  of  this 
exception;  and  the  plaintiffs  offered  in  evidence  that  the  said 
book  is  one  of  their  books,  and  is  the  one  in  which  the  pro 
ceedings  of  the  President  and  Directors  of  the  Union  Bank 
were  entered,  so  far  as  the  same  were  reduced  to  writing,  and 
contains  the  proceedings  as  aforesaid,  so  far  as  the  same  were 
reduced  to  writing,  from  the  time  of  the  original  association 
until  the  charter  was  obtained,  and  also  after  the  charter  was 
obtained  until  the  year  eighteen  hundred  and  nineteen;  that 
there  is  no  other  book  in  which  the  proceedings  of  the  presi- 


OF  MARYLAND.  357 


UNION  I>A\K  OF  MARYLAND  v.   RIDGELY. — 1827. 

dent  and  directors  as  aforesaid,  were  entered  during  the  said 
period  aforesaid,  and  no  other  writing  or  memorandum  of  their 
proceedings  when  they  were  assembled  as  the  president  and  di- 
rectors as  aforesaid.  Third.  The  plaintiffs  offered  to  read  in 
evidence  from  the  said  book,  a  writing  headed  the  by-laws,  un- 
der which,  as  the  plaintiffs  allege,  the  said  president  and  di- 
rectors acted.  Fourth.  The  plaintiffs  offered  to  read  from  the 
said  book  a  resolution  passed  by  the  board  of  directors  of  the 
original  association,  on  the  27th  of  September  1804,  "That  no- 
tice be  given  in  the  public  newspapers  in  this  cit3r,  that  a  peti- 
tion would  be  presented  to  the  general  assembly  of  Maryland, 
at  their  next  session,  for  a  law  to  incorporate  the  stockholders 
of  the  said  institution."  Fifth.  The  plaintiffs  offered  in  evi- 
dence the  act  of  incorporation,  and  the  several  other  acts  of  as- 
sembly, relating  to  the  said  incorporation,  duly  authenticated, 
copies  of  which  are  herewith  filed,  and  are  to  be  considered  as 
part  of  this  exception  by  agreement  of  parties.  Sixth.  The 
plaintiffs  offered  to  read  from  the  said  book,  entitled  "by-laws," 
the  following  entry:  "Thursday,  24th  January,  1805.  At  a 
meeting  of  the  president  and  directors  this  day,  the  members 
on  behalf  of  the  state  being  present,  the  charter,  so  far  as  it  re- 
lates to  the  oath  of  officers,  being  read,  it  was  resolved,  That 
the  president,  each  director,  and  cashier,  take  the  following 

oath  or  affirmation,  as  the  case  may  be — 'I ,  do  swear  or 

affirm,  that  J  will  faithfully,  impartially,  diligently  and  honest- 
ly, execute  the  duties  of  a  director,  agreeably  to  the  provisions 
of  law,  and  the  trust  reposed  in  me,  to  the  best  of  my  skill  and 
judgment.'  This  being  done,  they  proceeded  to  vote  on  the 
propriety  of  advertising,"  &c.  which  said  entry  the  plaintiffs 
gave  in  evidence,  was  in  the  handwriting  of  the  said  Ralph 
Higginbothom.  Seventh.  The  plaintiffs  offered  to  read  an  en- 
try from  the  said  book  before  mentioned,  as  iollows:  "Where- 
as by  an  act  to  incorporate  the  stockholders  in  the  Union  Bank 
of  Maryland,  it  is,  among  other  things  enacted,  that  an  elec- 
tion for  sixteen  directors,  to  conduct  the  affairs  of  the  said  bank, 
shall  be  annually  held  on  the  first  Monday  in  July.  And  where- 
as the  said  first  Monday  in  July  may  sometimes  fall  on  the 
fourth  of  said  month,  on  which  the  bank  will  be  shut,  agreea- 
bly to  the  provisions  of  the  fourth  article  of  the  by-laws,  or- 


,  358  CASES  IN  THE  COtTRT  OF  APPEALS 

UNTO*  HAWK  or  MAnYtAyn  r.    HIDOELT.  — 1827. 

dained  and  passed  for  the  regulation  and  government  of  tho 
said  corporation,"  &c.  Eighth.  The  plaintiffs  offered  to  read 
from  the  said  book,  an  entry  made  on  the  30th  of  August  1819, 
in  the  following  words  and  letters,  "S.  Etting,  D.  Winches- 
ter and  Jl.  Ellicoff,  are  appointed  a  committee  to  revise  the  by- 
laws." Ninth.  The  plaintiffs  offered  in  evidence  the  by-laws, 
as  revised,  a  copy  of  which  is  herewith  filed  and  agreed  to  be 
considered  as  a  part  of  this  exception.  Tenth.  The  plaintiffs  of- 
fered in  evidence  the  bond  in  the  declaration  mentioned,  which  it 
is  admitted  was  signed  and  sealed  by  the  defendant  in  this  cause* 
The  plaintiffs,  further  to  prove  the  issues  on  their  part, produc- 
ed John  Hollim,  a  competent  witness,  who  gave  in  evidence 
to  the  jury,  that  he  was  a  member  of  the  corporation  of  the 
Union  Bank,  at  the  time  of  its  incorporation,  and  had  been  so 
under  the  articles  of  association;  that  he  continued  to  be  a  mem- 
ber of  said  corporation  lor  several  years  after  the  act  of  incor- 
poration. The  said  witness  also  gave  in  evidence,  that  upon 
inspection  of  the  book  marked  "by-laws,"  as  produced  in  court, 
he  knew  the  said  "by-laws,"  or  regulations  entitled  "by-laws," 
and  many  of  the  other  minutes  written  therein  for  a  long  peri- 
od after  the  act  of  incorporation,  as  well  as  before  the  said  act 
from  the  commencement  of  the  association,  to  be  in  the  hand- 
writing of  Ralph  Iligginbothom,  who  was  at  the  time  of  the 
said  writing,  and  afterwards,  the  cashier  of  the  said  bank;  the 
said  witness  also  gave  in  evidence,  that  he  believed  the  said 
writings  entitled,  "by-laws,"  as  aforesaid,  to  be  the  true  by- 
Jaws  of  the  plaintiffs,  and  adopted  and  used  by  them,  although 
the  witness  did  not  know  that  he  had  ever  before  seen  the  book 
in  which  they  were  written,  his  memory  as  to  this  matter  being 
too  uncertain  to  identify  the  said  book;  and  the  said  witness  be- 
ing interrogated  to  each  "by-law"  separately,  as  written  and 
numbered  in  the  said  book,  gave  in  evidence,  that  while  he  was 
a  director  in  the  said  bank,  it  was  the  usage  of  the  said  bank  to 
act  according  to  the  first  article  of  'he  said  by-laws,  whether 
the  bank  acted  agreeably  to  the  second  article  he  did  not  re- 
member. That  the  bank  practised  conformably  to  the  3d  arti- 
cle, also  to  the  4th.  To  the  5th  article  of  the  by-laws,  the  wit- 
ness gave  in  evidence  that  the  president  and  directors  for  the 
first  five  or  six  months  after  their  association,  and  before  the 


OF  MARYLAND.  359 


UMU.N  HANK  UK  MAUYLAND   (>.    Hi  HOLLY. — 1327. 

act  of  incorporation,  met  but  once  a  week,  but  at  the  end  of  that 
time,  the  said  president  and  directors  met  always  twice  a  week, 
and  this  article  Was  thea  complied  with.  That  the  bank  acted 
according  to  the  Gth  article,  aud  also  ilie  7th  and  8th.  The  9th 
article  the  witness  could  not  say  how  far  it  was  complied  with, 
as  it  would  have,  required  a  porsoa  to  be  in  the  bank  to  know 
it;  of  the  following  articles  up  to  the  20th,  the  witness  gave  in 
evidence,  it  was  the  usage  of  the  bank  to  act  according  to  them; 
of  the  20th  article  he  did  not  remember;  the  21st  article  was 
a  customary  rule;  the  22d  article  lie  did  not  remember  that  it 
was  complied  with,  but  that  it  was  understood  by  the  directors 
to  have  been  a  part  of  their  duty;  the  23d  article  he  did  not  re- 
collect; the  24th  and  2jth  were  according  to  the  usage  of  thw 
bank;  and  to  the  2Gth,  the  witness  staled  that  he  knew  of  no 
revision  of  the  by-laws.  The  witness  further  gave  in  evidence, 
that  he  never  heard  of  any  other  by-laws,  than  those  which  had 
been  read.  The  plaintiffs  further  produced  Solomon  Birckhead, 
a  legal  and  competent  witness,  who  gave  in  evidence  that  he  was 
formerly  a  member  of  the  association,  and  one  of  the  first  board 
of  directors,  and  that  he  remembered  there  were  by-laws  ia 
the  said  bank,  although  he  could  not  undertake  to  identify  them. 
The  plaintiffs  also  produced  Stewart  Brown,  a  legal,  compe- 
tent witness  in  the  cause,  who  gave  in  evidence,  that  he  also  had: 
been  a  director  in  the  said  bank,  for  one  or  two  years,  a  short 
time  after  its  incorporation,  and  had  also  been  a  member  of  tho 
association.  The  witness  lurther  stated  that  he  was  not  ac- 
quainted with  the  by-laws  produced  ia  court,  his  memory 
not  being  sufficiently  strong  to  enable  him  to  recollect,  but 
upon  hearing  them  read,  he  gave  ia  evidence  that  the  direc- 
tion and  government  of  th<*  bank,  was  in  general  conforma- 
ble to  these  regulations,  but  never  saw  the  rules  now  produced, 
or  any  other.  The  plaintiffs  further  offered  James  si.  Buch- 
anan, a  legal  and  competent  witness,  who  gave  in  evidence  that 
lie  had  been  a  member  of  the  original  association,  and  also  of 
the  bank,  after  its  incorporation,  and  was  for  some  lime  a  di- 
rector; that  he  had  no  recolle  ction  that  he  had  ever  seen  the 
by-laws,  though  he  presumed  he  had  seen  them  as  a.xlirector. 
Being  examined  to  the  by-laws  t-eparately,  the  witness  guve  ia 
evidence,  that  will*  the  exception  of  the  articles  Nos.  1,  2,  10, 


360       CASES  IN  THE  COURT  OP  APPEALS^ 


MOX  BANK  OP  MARYLAND  r.   KID«ELY.  —  1827. 


11,  12,  13,  20,  25  and  2f>,  of  which  he  had  no  distinct  recol- 
lection, he  remembered  that  the  bank  was  usually  regulated  ac- 
cording to  the  system  prescribed  in  the  said  by-laws,  and  parti- 
cularly in  regard  to  the  cashier's  duty,  as  contained  in  the  19th 
article;  he  remembers  that  such  regulations  were  required  of 
him,  and  in  regard  to  the  25th  article,  he  remembered  such  a 
rule,  although  he  knew  nothing  of  its  execution;  the  witness 
further  gave  in  evidence,  that  he  knew  of  no  other  regulations 
of  the  bank,  than  those  read,  and  that,  in  general,  he  believed 
them  to  have  been  complied  with,  yet  that  they  were  not  ri- 
gidly observed,  either  by  the  directors  or  officers.  The  plain- 
tiffs further  produced  George  T.  Dunbar,  a  legal  and  compe- 
tent witness  in  the  cause,  who  gave  in  evidence  that  he  was  a 
clerk  in  the  bank  of  the  plaintiffs,  at  the  time  of  the  act  of  in- 
corporation; that  at  that  time  the  said  Ralph  Higginbothoirt 
was  the  cashier  of  the  bank  of  the  plaintiffs,  and  the  said  writ- 
ings, entitled,  "by-laws,"  are  in  the  hand-writing  of  the  saidt 
Ralph.  And  also  that  the  minutes  in  the  said  book,  from  the 
commencement  of  the  institution,  until  the  act  of  incorporati- 
on, and  from  that  time  for  several  years  afterwards,  are  in  the 
handwriting  of  the  said  Ralph,  and  the  said  minutes  were  kept 
by  the  said  Ralph,  who  was  considered  in  the  bank  the  proper 
officer  to  write  the  said  minutes.  The  said  witness  also  gave  in. 
evidence,  that  while  he  remained  in  the  bank,  the  said  Ralph 
was  in  the  habit  generally  of  performing  the  duties,  though  not 
with  regularity,  assigned  to  the  cashier  by  the  19th  article  of 
the  by-laws.  The  plaintiffs  produced  Thomas  N.  Gouldsmith, 
a  legal  and  competent  witness  in  the  cause,  who  gave  in  evi- 
dence that  he  had  been  a  clerk  in  the  said  bank  for  the  last  ten.' 
or  twelve  years,  during  the  greater  part  of  which  time  the  said 
Ralph  was  cashier  of  the  said  bank;  that  in  the  book,  entitled, 
"by-laws,"  many  of  the  minutes,  and  particularly  those  pur- 
porting to  be  during  the  first  five  or  six  years  of  the  charter, 
are  in  the  handwriting  of  the  said  Ralph,  and  that  the  said 
•writings,  entitled,  "by-laws,"  arc  all  in  the  handwriting  of 
the  said  Ralph.  The  witness  further  gave  in  evidence  that  said 
Ralph  was  in  the  habit  of  performing  the  duties  which  are 
enumerated  as  duties  of  the  cashier  in  the  19th  article  of  said 
by-laws,  or  that  he  professed  to  perform  them,  though  it  was1 


OF  MARYLANET,  361 


UNION  BANK  01-   MARYLAND  v.   HIDOEJ.T — 1827. 

done  with  irregularity.     The   plaintiffs  also  produced    George 
Taylor,  a  legal  and  competent  witness,  who  gave  in  evidence 
that   he  was  a  director  in  1817  or  1818 — that   when   he  was 
elected  a  director,  he  inquired  at  the  bank  for  the  by-laws,  and 
that  a  book  or  paper  containing  by-laws,  similar  in  purport   to 
those  which  were  produced  by  the  plaintiffs  in  court,   and  read 
to  the  other  witnesses,  were  delivered  to  him  by  some  officer 
of  the  band;  that  he  remembered  them,  because  the  board  act- 
ed according  to  them  while  he  was  a  director,  though  they  were 
not  very  rigidly  observed?  he  remembered  them  also  from  the 
fact,  that  discussions  as  to  what  were   the  rules   in  particular 
cases  would  sometimes  take  place  at  the  board,   and  that  such 
questions  would  be  decided  by  the  older  members,  who  were 
more  conversant  with  the  rules  than  himself,  in  a  manner  agree- 
able to  the  rules  he  had  heard  read,  but  no  book  or  paper  con- 
taining the  by-laws  was  ever  produced;  he   did  not  particular- 
ly recollect  the  book  in  court,  so  as  to  be  able  to   identify  it. 
The  witness  further  stated,  that  he  was  in  the  bank  when   the 
new  by-laws  were  adopted  in  1819;  that  he  was  present  at  the 
meeting  when  the  new  by-laws  were  adopted,   and  that  tjiese 
old  ones,  now  in  court,  were  the  by-laws  which  were  revised 
by  the  board;  that  the  bank,  as  long  as  he  was  a  director,  and 
until  the  new  by-laws  were  adopted,  corresponded  in  its  regu- 
lations and  government,  with  the  system  contained  in  the  by- 
laws in  the  book  now  offered  in  evidence,  and  that  the  witness 
never  heard  of  two  sets  of  by-laws  previous  to  the  revision,  as 
above  mentioned.     The  plaintiffs  further  produced  Jonathan 
Pinkney,  a  legal  and  competent  witness  in  the  Cause,  who  gave 
in  evidence,  that  he  is,  at  this  time,  the  cashier  of  the  plaintiffs, 
ami  had  been  so  from  the  year  1819.     That  when  he  came  in- 
to the  bank  he  found  the  book,   entitled,    "By-Laws,"  among 
the  other  books  of  the  corporation,  and  that  the  said  book  had 
the  reputation  in  the  bank  of  being  the  former  by-laws  and  mi- 
nutes of  the  corporation,  and  that  the  new  by-laws  were  adopt- 
ed a  short  time  before  he  became  the  cashier   of  the  plaintiffs," 
the  said  witness  also  gave  in  evidence  that  the  said  by-laws,   as 
well  as  the  minutes  for  several  years,  were  in  the  proper  hand- 
writing of  the  said  Ralph  Higginbothom,  the  former  cashier. 
The  plaintiffs  further  gave  in  evidence  by  Elias  Glenn,  Es* 
?OL.  R.  46 


362  CASfcS  IN  THE  COURT  OF  APPEALS ' 

UNION  BANK  OF  MARYLAND  *>.  RIDGELY. — 1827. 

quire,  a  competent  witness,  that  he  was  a  director  in  the  Uni- 
on Bank  for  two  years,  and  thinks  he  was  so  between  the  y  ears 
1806  and  1811;  knows   that  certain  by-laws  were   handed   to 
him  when  he  was  sworn  in  as  a  director,  or  about  that  time,  and 
that  he  read  them,  but  the  contents  of  them  he  does  not  recol- 
lect; he  thinks  that  when  they  were  shown  to  him,   some   of 
the  other  directors  told  him  the  bank  had  a  set  of  by-laws,  and 
that  it  would  be  necessary  for  witness  to  read  them,  as  he  was 
now  a  director;  witness   is  not  sure  that  the  by-laws   he  read 
were  in  a  printed  or  written  form;  he  never  heard   of  bat  one 
set  of  by-laws,  in  said  bank;  does  not   know  whether  the  by- 
laws contained  in  the  book  produced  by  the  plaintiffs,  entitled, 
*<By-Laws,"  are  the  same  as  those  he  read,  some  of  them,   as 
far  as  he  has  now  read   them,  which  is  to  the  seventh  in   said 
book,  were  exactly  the  same  as  the  usage  of  the  bank,  and  some 
were  not,  but  he  does  not  say  that  the  said  by-laws  in  said  book, 
were  or  were  not  the  rules  ot  the  bank.     He  says,  that  so  far 
as  the  word  "week,"  at  the  end  of  the  fourth   line  of  the  5th 
article  of  the  by-laws  in  said  book  the  usage  ot  the  bank  was 
in  exact  conformity  with  said  rule,   but  tnat  the  usage  of  the 
bank  was  directly   contrary  to  that  part  of  the   said  articles, 
which  directs  that  the  discounts  should  not  he  paid  till  after  12 
o'clock  of  the  day  on  which  the  discount  was  made;  that  they 
were  paid  out  at  any  time  after  they  were  made,  and  passed  to 
the  credit  of  the  persons  for  whom  they  were  made;   he  does 
not  think  the  board  ever  sat  so  long  as  12  o'clock  at  their  dis- 
count meetings.    Witness  has  himself  often  drawn  out  his  dis- 
counts before  12  o'clock,    as  well  as  those  which   were  made 
for  himself,  as  upon  the  checks  of  other  persons,  for  whose  use 
discounts  were  made;  that  he  has  had  a  conversation  lately 
with  Mr.  Etting,  one  of  the  directors  of  the  bank  at  the  pre- 
sent time,  and  one  of  the  present  plaintiffs,  and  that  Mr.  Et~ 
ting  told  him,  in  that  conversation,  that  it  has  ever  been  the 
usage  of  the  bank  to  pay  out  discounts  whenever  they  were 
applied  for  without  regard  to  time;  witness  does  not  undertake 
to  say  Whether  such  a  rule  as  that  discounts  should  not  be  paid 
out  till  after   12  o'clock  existed  or  not.     The  defendants  then 
offered  in  evidence,  from  the  minutes  in  the  said  book  of  the 
proceedings  of  the  plaintiffs,  that  there  is  no  entry  or  memo- 


OF  MARYLAND.  363 


Uwiou  RANK  OF  MARYLAND  v.   RIDGELT. — 1827. 


randum  of  the  adoption  of  the  writing  above  produced,  as  the 
by-laws  of  the  said  bank  by  the  vote  of  the  said  corporation,  or 
of  the  president  and  directors  thereof;  that  the  proceedings  in 
1819,  upon  the  subject  of  the  revision  of  the  by-laws,  were  alter 
the  dismissal  of  the  said  Ralph  Higginbothom  from  employ- 
ment in  the  said  bank,  and  also,  that  the  minutes  in  the  said 
book  contain  no  memorandum  of  the  appointment  of  the  said 
Ralph  as  cashier  of  the  said  bank  after  it  was  incorporated.  And 
thereupon  the  defendant,  by  his  counsel,  objected  to  the  read- 
ing of  the  said  writing,  headed  "by-laws/'  produced  as  above 
mentioned,  as  and  for  the  by-laws  of  the  said  corporation,  and  as 
prescribing,  among  other  things,  the  duties  of  the  said  Ralph, 
while  he  was  in  the  employment  of  the  said  bank;  and  the  court 
were  of  opinion  that  the  said  writing  could  not  be  read  in  evi- 
dence for  the  purposes  aforesaid.  The  plaintiffs  excepted. 

4.  The  plaintiffs,  in  addition  to  the  matters  and  things  con- 
tained in  the  preceding  bills  of  exceptions  for  the  plaintiffs,  fur- 
ther produced  in  evidence  the  bond  and  condition,  of  which 
oyer  is  given  in  this  cause,  as  set  forth  in  the  pleadings;  and  also 
gave  in  evidence,  that  the  defendant  signed  and  sealed  the  same; 
and  further  gave  in  evidence  by  Jonathan  Pinkney,  the  pre- 
sent cashier  of  the  said  bank,  that  when  he  entered  upon  the 
said  office  on  the  16th  November,  1819,  he  found  the  said  bond, 
as  now  produced,  deposited  among  the  archives  and  valuable 
original  papers  and  documents  of  the  said  bank,  in  an  irori 
chest  in  the  banking-house  of  the  said  corporation,  together 
with  other  papers  purporting  to  be  the  bonds  of  the  tellers, 
book-keepers,  and  other  inferior  officers  of  the  said  bank,  a;-d 
that  this  bond  had  ever  since  so  remained  in  possession  of  the 
said  bank,  until  it  was  delivered  out  to  the  attor  ,ey  of  said 
bank  by  the  witness,  as  cashier  thereof,  to  be  used  upon  the 
trial  of  this  cause.  Whereupon  the  court  inquired  of  the  plain- 
tiffs' counsel  whether  there  was  any  evidence  that  the  bond, 
upon  which  this  suit  was  brought,  had  ever  been  received  as 
satisfactory  by  the  President  and  Directors  of  I  he  Union 
Bunk  other  than  what  is  stated  in  this  and  the  preceding  ex- 
ceptions, and  being  answered  by  the  plaintiffs'  counsel  in  the 
negative,  instructed  the  jury  that  the  cashier,  before  he  entered 


364  CASES  IN  THE  COURT  OF  APPEALS 

UJUOST  BANK  OF  MARYLAND  v.  RIDGELT. — 1827. 

npon  the  duties  of  his  office,  was  icquired  by  the  act  of  assenv 
bly  to  give  a  bond,  with  two  or  more  sureties  to  the  satisfac- 
tion of  the  president  and  directors,  for  his  good  behaviour,  and 
there  was  no  legal  evidence  of  any  bond  having  been  given  to 
their  satisfaction,  which  could  bind  the  sureties  in  this  case; 
and  they  must  therefore  find  for  the  defendant  on  the  issue 
joined  on  the  sixth  plea.  The  plaintiffs  excepted. 

5.  Upon  the  evidence  contained  jn  the  preceding  bills  of  ex- 
ceptions, the  plaintiffs,  by  their  counsel,  prayed  the  court  to  in- 
struct the  jury,  1st.  That  the  jury,  in  the  absence  of  all  other 
evidence  respecting  the  execution  of  the  said  bond,  were  at 
liberty  to  infer  from  the  foregoing  evidence  that  the  said  bond 
*vas  duly  executed  and  delivered  by  the  said  defendant,  and, 
duly  accepted  by  the  said  plaintiffs,  notwithstanding  no  written 
evidence  of  the  acceptance  thereof  by  the  said  corporation,  or 
its  board  of  directors,  was  adduced  by  the  plaintiffs  at  this  trial, 
and  that  a  written  acceptance  thereof  was  not  necessary  to  give 
Talidity  to  the  bond.  2.  That  under  the  issue  joined  upon  the 
sixth  plea  of  the  defendant,  the  production  of  the  said  bond  by 
the  plaintiffs,  and  their  possession  thereof,  together  with  the 
proof  and  admission  that  the  defendant  had  signed  and  sealed 
the  same  as  aforesaid,  were  sufficient  prima  facie  evidence  of 
the  due  execution,  delivery  and  acceptance  thereof  in  law,  and 
that  the  burden  of  proof  of  the  non-acceptance  thereof,  or  of 
the  other  special  matter  set  forth  in  the  sixth  plea,  lies  upon 
the  defendant;  and  in  the  absence  of  all  proof  on  the  part  of  the 
defendant  touching  the  matters  set  forth  in  the  said  sixth  plea, 
the  jury  ought,  on  the  issue  joined  upon  that  plea,  to  find  a 
Verdict  for  the  plaintiffs.  Both  of  which  directions  the  court  re- 
fused to  give;  but  were  of  opinion,  and  so  instructed  the  jury, 
that  the  cashier  mentioned  in  said  bond,  was  required  by  the- 
act  of  assembly  to  give  a  bond  with  two  or  more  sureties,  to  the 
satisfaction  of  the  president  and  directors  of  the  bank,  for  his 
good  behaviour,  and  there  was  no  legal  evidence  of  any  bond 
having  been  given  to  their  satisfaction  which  could  bind  the 
surety  in  this  case,  and  they  must  therefore  find  a  verdict  fos 
the  defendant  on  the  issue  joined  on  the  said  sixth  plea.  The 
plaintiffs  exnepted. 


OF  MARYLAND.  36$ 


X  BASK  OF   MAHTLAMI  r.  RIDOELT.  —  1827. 


6.  At  the  trial  of  this  cause,  and  after  the  opinion  and  direc- 
tion had  been  given  by  the  court,  as  stated  in  the  fourth  and 
fifth  bills  of  exceptions  of  the  plaintiffs,  in  order  to  prove  the 
breaches  and  damages  assigned  and  suggested  in  this  cause,  in 
addition  to  the  testimony  stated  in  the  preceding  exceptions, 
offered  to  give  in  evidence  the  several  original  corporation  books 
of  the  plaintiffs,  called  offering  books,  legers,  scratchers,  cash 
books  and  statement  books,  which  purported  to  contain  as  well 
the  accounts  of  the  said  bank  with  its  customers,  as  also  state* 
ments  of  the  affairs,  property,  debts  and  credits,  of  the  said  cor- 
poration, during  the  whole  period  between  the  20th  of  January 
1605,  and  the  6th  of  February  1817,  and  to  prove  that  the  said 
books  were  kept  by  a  certain  Pierce  L.  Tanner,  and  a  certain 
Jacob  Hart,  as  officers  of  the  said  corporation,  during  the  time 
aforesaid,  and  to  prove  that  the  said  Pierce  L.  Tanner  was 
resident  out  of  the  jurisdiction  of  this  court  in  parts  unknown, 
and  that  the  said  Jacob  Hart  was  dead,  and  that  the  several 
entries  contained  in  the  said  books,  were  in  the  proper  hand- 
writing of  the  said  Tanner  and  Hart,  and  were  kept  under 
tho  superintendance  and  direction  of  the  said  Ralph  Higgin- 
bothom.  And  also  offered  to  prove  by  the  said  books,  that 
divers  false  entries,  mistakes,  omissions,  irregularities  and  ma- 
terial disagreements,  occurred  therein  by  the  neglect  and  fraud 
of  the  said  Ralph  Higginbothom,  and  the  said  Pierce  L.  Tan- 
ner, and  that  there  were  great  deficiencies  m  the  funds  of  the 
bank,  by  reason  whereof  the  plaintiffs  had  sustained  great  losses. 
Whereupon  the  defendant,  by  his  counsel,  prayed  the  opinion 
of  the  court  to  the  jury,  that  upon  the  evidence  and  directions 
in  the  preceding  exceptions,  the  evidence  offered  as  stated  in 
this  exception,  is  not  admissible  for  the  purpose  of  proving  the 
plaintiffs  entitled  to  damages  either  on  the  issues  joined  or  on  the 
breaches  suggested;  which  opinion  the  court  gave,  and  accord- 
ingly rejected  the  evidence.  The  plaintiffs  excepted;  and  the 
judgment  being  for  the  defendant,  the  plaintiffs  appealed  to  this 
court. 

The  cause  was  argued  at  June  term  last,  and  afterwards  re- 
argued  in  writing,  before  BUCHANAN,  Ch.  J.  and  EARLE? 
Tiir,  and  DORSE  y,  J. 


366  CASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK  OF  MARYLAND  v.   RIDOKLT — 1827. 

Mitchell,  and  Kennedy,  for  the  Appellants,  contended, 

1.  That  the  liability  of  the  defendant  on  the  bond  extended 
to  a  period  beyond  the  original  term  to  which  it  was  enacted 
that  the  charter  should  continue. 

2.  That  the  execution  and  delivery  of  the  bond  were  suffi- 
ciently proved  on  the  part  of  the  plaintiffs  to  hold  the  defendant 
liable  in  this  action. 

3.  That  the  defendant's  sixth  plea  ought  not  to  have  been 
accepted.     1.  Because  it  came  too  late  and  by  surprise  on  the 
plaintiffs.     2.  Because  it  is  incompatible  with  the  other  pleas 
in  the  cause. 

4.  That  the  court  below  erred  in  taking  from  the  jury,   as 
stated  in  the  plaintiffs'  4th  and  5th  bills  of  exceptions,  the  ques- 
tion of  the  due  delivery,  execution  and  acceptance  of  the  bond; 
and  also  that  the  court  erred  in  refusing  the  two  prayers  of  the 
plaintiffs  contained  in  their  5th  bill  of  exceptions,   and  in  the 
opinion  and  instructions  given  by  them  as  stated  in  said  5th 
bill  of  exceptions. 

5.  That  if  acceptance  of  the  bond,  on  the  part  of  the  plain- 
tiffs, were  necessary,  that  fact  was  sufficiently  proved  by  their 
possession  of  the  bond  and  the  other  evidence  offered  in  the 
cause,  and  ought  to  have  been  left  to  the  jury;  and  that  the 
court  erred  consequently  in  the  opinion  expressed  in  the  plain- 
tiffs' 4th  bill  of  exceptions. 

6.  That  it  was  not  necessary  that  the  bond  should  be  accept- 
ed in  writing. 

7.  That  the  by-laws  of  the  bank  were  sufficiently  proved  by 
the  evidence  in  the  cause. 

8.  That  the  court  erred  in  rejecting  the  evidence,  as  stated 
to  have  been  offered,  in  the  plaintiffs'  6th  bill  of  exceptions,  the 
said  evidence  being  proper  to  have  gone  to  the  jury  to  prove 
,the  breaches  assigned  and  suggested  by  the  plaintiffs. 

9.  That  the  court  erred  in  rejecting  the  testimony  of  Henry 
Payson,  and  in  sustaining  the  objection  made  by  the  defen- 
dant's counsel  as  set  forth  in  the  plaintiffs'  2d  bill  of  exceptions. 

10.  That  the  court  were  in  error  in  sustaining  the  demurrers 
by  the  defendant  to  the  breaches  assigned  under  the  1st  and  2d 
pleas;  because  all  the  said  breaches  were  good  as  iar  as  they 
charged  the  defendant  with  defaults  from  the  date  of  the  bond. 


OF  MARYLAND.  367 


UNION  BANK  OF  MARYLAND  v.  RIDOBLT. — 1827. 


11.  That  a  judgment  according  to  the  prayer  of  the  plain- 
tiffs ought  to  have  been  entered  in  their  favour  upon  the  inqui- 
sition by  the  jury;  and  that  the  judgment  entered  in  favour  of 
the  defendant  was  erroneous. 

1.  *fts  to  the  first  bill  of  exceptions.  The  sixth  plea  ought 
not  to  have  been  received — considering  the  other  pleadings  and 
the  time  when  offered.  It  was  inconsistent  with  the  first 
plea  of  performance,  and  the  second  plea  of  payment.  The 
cases  in  the  books,  will  sufficiently  show  the  court  that  these 
pleas  are  deemed  incompatible  in  the  English  practice,  and 
never  allowed  there,  unless  by  special  application  to  the  court 
within  the  first  rule-day  for  pleading,  so  that  the  parties  may 
have  early  notice  and  come  fully  prepared  to  try  both  issues. 
But  what  was  the  case  here?  The  cause  had  been  at  issue 
upon  all  the  pleadings  more  than  three  years.  The  first  rule 
to  plead  had  expired  as  early  as  the  1st  of  September,  1819, 
and  the  leave  to  amend  had  expired  on  the  20th  of  February, 
1824.  The  XI.  rule  inhibited  all  special  pleas  after  the  rule- 
day  had  expired,  and  the  XXXIII.  rule  had  expressly  enacted- 
as  the  law  of  the  court,  that  the  pleas  of  non  est  fuctum  and 
payment,  set  off  and  release,  should  not  stand  together.  The 
defendant  has  sworn  to  this  plea — of  course  he  was  always  ap- 
prised from  the  commencement  of  the  suit,  (March  term,  1819,) 
of  this  defence.  With  this  knowledge  he  lies  by  five  years, 
until  8th  May,  1824,  and  at  the  moment  of  trial,  more  than 
thirty  days  after  the  commencement  of  that  term,  and  after  all 
the  witnesses  had  been  summoned  and  were  attending,  and  just 
as  the  jury  were  about  taking  the  o,;th,  he  comes  down  upon 
the  plaintiffs  with  a  new  plea,  requiring  a  new  replication  and 
new  proof,  and  other  witnesses.  It  will  be  observed  that  the 
replications  to  the  1st  and  2d  pleas  allege  tho  due  execution  of 
the,  bond — the  appointment  of  the  cashier,  and  his  acting  under 
the  bond;  and  issue  is  joined  on  the  breach  of  his  duties  alone — 
so  that  under  the  issues  already  joined  the  execution  of  the  bond 
was  admitted.  The  standing  rules  of  the  court  also  further 
guaranteed  the  plaintiffs  against  surprise  from  any  special  plea 
at  that  time,  and  especially  against  a  plea  contradicting  what 
was  already  admitted  upon  the  record.  And  yet  the  court, 
•without  rescinding  those  rules,  and  with  no  special  reason  as- 


368  CASKS  IN  THE  COX/RT  OP  APPEALS 

, _ , . — _ , — ^ 

UNION  BANK  OF   MARYLAND  v.  KIDGELY  — 1827. 

signed  for  dispensing  with  them,  received  this  new  plea  and 
compelled  the  plaintiffs  to  reply  instanter  and  proceed  to  trial 
on  this  new  issue,  or  to  submit  to  a  further  delay  of  six  months, 
after  the  suit  had  been  procrastinated  five  years!  How  the 
Jearned  counsel  can  argue  that  this  was-  no  surprise  upon  the 
plaintiffs,  or  how  they  have  discovered  that  no  continuance 
was  asked,  cannot  readily  be  divined.  The  surprise  was  in- 
evitable, and  no  such  fact  is  stated  upon  the  record,  as  a  waiver 
of  time  to  reply,  and  cannot  be  presumed — although  on  prin- 
ciple it  would  not  vary  the  hardship  of  the  case.  This  court, 
it  is  believed,  will  decide  this  exception  upon  principles  appli- 
cable to  all  cases,  and  it  is  most  respectfully  submitted,  whether 
the  first  exception  exhibits  a  proper  exercise  of  the  sound  dis- 
cretion entrusted  to  the  county  courts  by  the  acts  of  assembly 
of  1809,  ch.  153,  s.  1. 

2.  As  to  the  fourth  and  fifth  bills  of  exceptions.  In  con 
sidering  these  exceptions  together,  it  is  proposed  to  inquire  in. 
the  first  place  on  which  party  the  proof  lies  by  the  6th  pleat 
1st.  As  to  the  onus  probandi.  The  2d  prayer  of  the  5th 
bill  of  exceptions  asserts  that  the  burden  of  proof  is  cast  on  the 
defendant  by  this  issue;  and  that  in  the  absence  of  all  proof 
en  his  part  and  the  production  of  the  bond  by  the  plaintiffs, 
coupled  with  the  admission  that  the  defendant  signed  and  sealed 
it,entitled  the  plaintiffs  to  a  verdict  on  this  issue.  The  defendant's 
counsel  deny  this  proposition,  on  the  ground  that  the  special 
circumstances  stated  in  the  plea  are  not  put  in  Issue — but  merely 
the  conclusion  which  contradicts  an  affirmative  in  the  declara- 
tion, and  so  puts  the  plaintiffs  to  prove  their  averment.  They 
urge  with  much  subtlety,  that  if  the  special  circumstances  stated 
in  the  plea  are  to  be  considered  as  new  matter  in  avoidance, 
the  plea  should  have  concluded  with  a  verification,  whereas  it  is 
well  established  that  such  a  plea  ought  to  conclude  to  the  coun- 
try. It  is  admitted  that  the  conclusion  of  this  plea  is  right; 
but  the  fallacy  of  this  ingenious  argument  lies  in  the  applica- 
tion of  the  ordinary  rules  of  pleading  in  other  cases  to  the  plea' 
of  special  non  cst  factum,  or  as  Lord  Coke  terms  it,  the  gene- 
jal  issue  with  an  issent.  5  Com.  Dig.  387.  IVhilpdale' a 
Case,  5  Co.  Rep.  119.  This  is  a  peculiar  plea,  which  implied- 
Jy  admits  the  signing  and  sealing,  but  seeks  to  avoid  the  writ- 


<MP  MARYLAND.  369 


RANK  OF  MARYLAND  ».   RIDOELT  —  1827. 


ing  as  a  deed,  by  reason  of  extrinsic  circumstances.  It  is  a 
plea  sui  generis,  and  disused  in  modern  times  for  the  reason 
assigned  by  Lord  Holt,  in  Bus  hell  vs  Pasmore,  6  Mod.  218. 
"That  it  is  impertinent,  as  it  puts  the  defendant  to  proof  of  such 
extrinsic  circumstances  in  avoidance,  in  consequence  of  the  im- 
plied admission  contained  in  it."  One  of  the  defendant's  coun- 
sel argued  as  if  it  were  optional  with  the  defendant  to  shift  the 
burden  of  the  proof  by  the  form  of  the  conclusion.  If  the 
defendant  concludes  with  a  verification,  then  the  plaintiff  (says 
he)  may  take  issue  upon  either  of  the  facts;  hut  if  the  conclu- 
sion be  to  the  country,  the  preceding  matters  are  only  induce- 
ment and  cannot  he  traversed;  so  that  the  plea  is  in  that  case 
only  the  simple  general  issue  denying  the  averments  in  the  de- 
claration. It  would  be  indeed  an  extraordinary  rule  in  plead- 
ing, that  the  affirmative  of  the  issue  should  depend  upon  the  con- 
clusion of  a  plea.  The  conclusion  of  a  plea  depends  on  the  sim- 
ple inquiry  whether  there  be  a  direct  averment  and  denial,  with- 
out regard  to  the  nature  of  the  issue.  The  rule  is  well  establish- 
ed, "that  if  the  plea  conclude  with  a  special  negative  to  the  af- 
firmative in  the  declaration,  (as  in  this  case,)  it  must  conclude 
to  the  country,  and  the  defendant  must  prove  the  special  mat- 
ter, if  the  plaintiff  join  issue  upon  the  whole  plea."  The 
similiter  puts  the  whole  plea  and  not  the  conclusion  of  it  in 
issue.  Thus,  in  covenant,  if  the  breach  consists  in  nonpayment 
of  a  sum  of  money  at  the  day,  or  in  not  repairing,  and  the  defen- 
dant avers  payment  or  repair,  and  concludes  to  the  country;  yet 
the  issue  lies  on  the  defendant.  So  if  lessee  is  to  pay  rent  during 
the  life  of  J.  S.  and  the  plaintiff  avers  a  breach  and  the  continu- 
ance of  J.  S's,  life,  and  the  defendant  asserting  the  death  of  J.  S. 
concludes  to  the  country  and  specially  negatives  the  averment 
in  the  declaration;  yet  the  burden  of  proof  lies  on  the  defen- 
dant. 1  Chitty's  Plead.  535,  (537.)  Again,  "A  conclu- 
sion of  law  is  nevei*-  traversable.  "  Whether  the  special  mat- 
iers  of  fact  set  forth  in  the  plea  are*  sufficient  to  avoid  this  deed 
if  proved,  is  a  question  of  law;  whether  these  exist  or  not  is 
a  question  of  fact.  If  the  defendant  had  concluded  with  a 
"Verification,  the  plaintiff  must  have  denied  specially  the  mat- 
ters of  fact  set  up  in  the  plea,  and  tendered  an  issue  to  the 
Country,  in  which  the  defendant  must  have  joined;  because  htf 
VOi.  i.  47 


370  CASES  IN  THE  COURT  OF  APPEALS 

UNION   BANK  OF   MARYLAND  v.  KIDGELY — 1827. 

could  only  reassert  the  same  matters  in  a  rejoinder,  and  could 
not  depart  from  his  plea;  but  as  he  concludes  this  plea  to  the 
country,  the  plaintiff  had  no  alternative  but  to  add  the  similiter 
which  denies  the  whole  matter  of  fact  asserted  in  the  plea. 
(1  Chitty's  Plead.  549.)  Neither  party  is  at  liberty  to  con- 
clude either  way  as  he  may  deem  fit,  excepting  only  in  the 
single  case  where  one  of  several  facts  is  denied  with  a  for- 
mal traverse.  1  Chitty's.  Plead.  538,  54^,  (550.)  Where 
the  words,  *'virtute" — per  quod  "pretextu,"  et  "ita  quod," 
&c.  introduce  a  consequence  or  inference  from  preceding  mat- 
ter, they  are  not  traversable.  Priddle  fy  Napper's  case, 
11  Coke,  10.  Henry  Pigot's  case,  Ib,  27.  Beal  vs  Simp- 
son, 1  Lord  Ray.  408.  The  King  vs  The  Mayer,  ffc.  of 
York,  5  T.  JR.  66.  Bennet  vs  Filkins,  1  Saund.  23,  (note 
5.J  5  Com.  Dig.  tit.  Plead.  (E.  30,)  412.  1  Chitty's  Plead. 
627.  See  Precedents,  2  Chitty's  Plead.  589.  That  the  proof 
of  this  issue  lies  exclusively  on  the  defendant  by  long  establish- 
ed and  unshaken  decisions,  appears  from  the  folio  wing  authori- 
ties. Bushellvs  Pasmore,  6  Mod.  218.  Henry  Pigot's  case, 

11  Coke,  27.     1  Chitt.  Plead  478,  479.      Gardners  Gard- 
ner, 10  Johns.  Rep.  47,  49.       Van  Valkenburgh  vs  Rouke, 

12  Johns.  Rep.  337.    Coare  vs  Giblett,  4  East,  94,  95.  But- 
ler Sf  Baker's  case,  3  Coke,  26.    3  Dane's  Ab.  466.    Souver- 
bye  vs  *flrden,  1  Johns.  Chan.  Hep.  250,  255.     5  Com.  Dig. 
643.      Whelpdale's  case,  5  Co.  Rep.  119     Stark.  Evid.  479, 
474.      1   Phil.  Evid.  128,  129.       Bull.  N.  P.  172.     2d.   But 
2dly,  admit  the  issue  lay  upon  the  plaintiffs,  have  they  not 
given  sufficient  prima  facie  evidence  of  the  due  execution  and 
acceptance  of  this  bond  to  justify  the  first  prayer  in  the  fifth 
bill  of  exceptions?     Possession  of  a  bond  by  the  obligee,  and 
proof  of  signing  and  sealing  by  obligor,   are  in  ordinary  cases 
sufficient  to  justify  an  inference  of  due  delivery  and  acceptance. 
Even  Chief  Justice  Marshall  admits  this  to  be  so  in  the  case  of 
individuals;  and  that  assent  or  acceptance  are  to  be  presum- 
ed from  the  beneficial  nature  of  the  grant  or  deed — indeed  it 
will  not  be  denied  by  our  learned  opponents.    That  such  is  the 
established  doctrine  in  England  and  in  several  of  the  United 
States,  appears  from  Butler  fy  Baker's  case,  3  Co.  Hep.  26. 
Periman's  case,  5  Go.  Rep.  84.   Souverbye.  vs  *%rden,  1  John§. 


OF  MARYLAND.  371 


UNION  RANK  OP  MABTLAND  v.   RIDGELT.  — 1827. 


C/i.  Hep.  250,  255.  Wood  vs  fJtvings,  1  Cranch,  251.  Jack- 
son vs  Phipps,  12  Johns.  Rep.  418.  Clarke  vs  Ray,  1  Harr. 
Sf  Johns.  323.  Acceptance  is  always  implied,  and  refusal  must 
be  proved  to  defeat  the  deed.  Shep.  Touch.  54,  56,  57,  74,  75. 
Whdpdale's  case,  5  Co.  Rep.  119.  2  Stark.  Evid.  479.  John- 
son vs  Baker,  4  Barn.  8?  Md.  440.  Wankford  vs  Wank- 
ford,  1  Salk.  301.  Is  there  any  feature  in  the  structure  of 
corporations  to  subject  them  to  a  different  rule?  The  decision 
of  Chief  Justice  Marshall,  at  Richmond,  gave  birth  to  the 
sixth  plea  in  this  case.  But  that  decision  proceeded  upon  the 
old  settled  doctrine,  that  secondary  evidence  could  not  be  ad- 
mitted which  presupposed  better  evidence  behind,  and  within 
the  power  of  the  party.  He  presumed  there  was  written  evi- 
dence of  the  acceptance  in  that  case;  but  that  decision  has  been 
overruled  by  the  supreme  court  at  the  last  session,  (the  chief 
justice  being  the  only  dissentient)^/.  Nay,  this  very  point 
has  been  settled  with  us  in  this  court  in  the  case  of  The  Far- 
mers' Bank  against  Whittington,  6  Harr.  <§'  Johns.  548.  In 
that  case  this  court  held,  with  his  Honour  Judge  Martin,  who 
tried  the  case,  that  unless  it  actually  appeared  that  there  was 
a  written  entry  of  the  fact  offered  to  be  proved  by  parol  evi- 
dence, then  such  evidence  was  admissible  to  prove  any  act  of 
a  corporate  board  or  body.  It  appearing  from  the  record  of  the 
proceedings,  that  there  is  no  such  entry  in  this  case,  parol  evi- 
dence is  admissible  to  prove  the  delivery  to  the  obligees  and 
their  acceptance  of  the  security. 

3.  The  evidence  offered  in  this  case  was  sufficient  to  war- 
rant this  inference  by  the  jury,  and  the  court  therefore  erred  in 
the  opinions  stated  in  the  fourth  and  fifth  bills  of  exceptions. 
1st.  It  was  acted  under  by  the  cashier  and  the  bank, -and  even 
acceptance  of  a  charter  has  been  implied  by  a  corporation  act- 
ing under  it.  The  King  vs.  Barzey,  4  Maul.  8?  ISelw.  255. 

The  King  vs.  *flmory,  1  T.  R.  575.  2d.  It  was  placed  by  the 
former  cashier,  who  was  the  common  agent  of  the  defendant 
and  of  the  bank,  among  the  muniments  of  the  bank,  and  left 
in  their  possession,  when  he  left  the  bank.  It  was  found  by 
Mr.  Pinkney,  the  present  cashier,  in  the  iron  chest  i«i  the  vault 
oi  the  bank,  which  is  not  in  the  custody  of  the  cashier,  but  of 

'faj  Sank  of  United  States  vs  Dandridge,  12  Wheat.  64. 


CASES  IN  THE  COURT  OF  APPEALS^ 


BANK  or  MARYLAND  y.  KIDOELY. — 1827. 


the  president,  as  the  court  will  perceive  by  the  18th  and  19th 
articles  of  the  by-laws.  The  corporate  seal  and  valuable  mu- 
niments of  the  bank  are  kept  in  this  iron  chest  Finding  the 
bond  in  such  a  place  is  good  legal  evidence  of  delivery.  Me- 
chanics' Bank  vs  Bank  of  Columbia,  5  Wheat.  337.  Fleck- 
ner  vs  United  States  Bank,  8  Wheat.  357.  Patterson  vs 
Bank  of  Columbia,  7  Crunch,  299.  Trials  per  Pais,  370. 
2  Bac.  «tf&.  648.  5  Bac.Ab.  160.  Goodright  vs  Straphan, 
1  Cowp.  204.  The  case  of  Smith  vs  The  Governor  and  Com- 
pany of  the  Bank  of  Scotland,  1  Bow's  Reports,  272,  in  the 
House  of  Lords,  is  quite  conclusive  on  this  subject,  as  to  the 
sufficiency  of  an  implied  acceptance  by  that  bank,  and  a  com- 
plete delivery  by  the  obligor.  The  bond  in  that  case  had  been 
refused  by  the  bank  and  sent  back  to  their  agent  to  be  altered 
by  the  obligor.  The  alteration  was  made,  and  while  the  new 
bond  was  in  transitu  by  the  post  office,  and  before  it  came 
to  the  hands  of  the  board  of  directors,  or  its  officers,  the 
cashier  was  removed.  Yet  this  was  held  by  all  the  judges 
and  the  Lord  Chancellor,  in  1813,  to  be  a  sufficient  delivery 
and  acceptance  to  bind  the  surety.  Compare  the  circum- 
stances in  that  case  with  those  that  exist  here,  and  can  there  be 
a  loop  left  to  hang  a  doubt  on?  But  it  is  said,  it  ought  to  ap- 
pear at  least  that  a  sufficient  board  was  convened  to  approve. 
That  it  was  a  special  power  delegated  to  a  special  body  by  the 
charter,  and  must  appear  to  have  been  strictly  complied  with 
by  those  claiming  under  it.  That  they  have  no  common  organ 
of  language  but  when  properly  assembled  and  their  voice  made 
known  by  writing.  If  there  were  any  force  in  these  objecti- 
ons, no  implied  assumpsit  could  ever  be  obtained  against  a  cor- 
porate body— No  agent  could  be  appointed  by  parol  authori- 
ty for  any  purpose.  The  supreme  court  pf  the  United  States, 
and  most,  if  not  all,  of  our  state  courts,  have  sanctioned  such  an 
assumpsit  and  such  a  power.  If  they  can  be  bound  by  the  acts 
of  agents  and  by  implied  contracts,  though  BO  proof  whatever  of 
a  regular  assemblage  of  the  directors,  or  of  any  vote  conferring 
such  powers  upon  their  ostensible  agents — a  fortiori — May 
their  concurrence  be  presumed  when  that  is  to  give  effect  only  to 
a  contract  in  their  favour;  as  in  the  case  of  femes  covert,  luna- 
tics and  infants,  to  whom  a  grant  is  valid,  though  they  cannot 


OF  MARYLAND.  373 


UJTION  BASK  OF  MAHTLAND  v.    HIDGELT- — 1827. 


contract  so  as  to  bind  themselves?  It  is  further  said,  that  Hig- 
ginbothom,  acting  as  cashier,  affords  no  presumption  of  hrs 
duly  qualifying  under  the  charter,  because  he  acted  as  such  un- 
der the  articles  of  association  before  the  charter.     The  an- 
swer is  obvious.    The  condition  of  this  bond  estops  both  Hig- 
ginbothom  and  Ridgely  from  denying  that  Higginbothom  was 
appointed  and  acted  as  cashier  under  the  charter,  for  this  re- 
.cites  his  appointment  by  those  to  whom  the   bond  is  given,  in 
March  1805.     Now  the  plaintiffs  had  been  incorporated  on 
the  24lh  of  January  1805.     But  the  inquiry  is  not  when  he 
signed  or  when  the  bond  was  delivered  or  accepted.     That  is 
quite  immaterial ;   for  the  obligation    of  the  bond  only  com- 
mences from  the  time  of  the  first  breach  of  the  cashier's  duties. 
The  statute  of  limitations  only  runs  from  the  breach,  and  not 
from  the  date;  nor  is  it  declared   on  as  an  obligation  made 
pn  any  particular  day,  as  seems  to  be  supposed   on  the  other 
side,  but  merely  as  a  writing  obligatory   bearing  date,  &c. 
Are  all  the  consecrated  rules  of  evidence  to  be  trampled  un- 
der foot  in  this  case  because  it  is  the  case  of  a  surety?    Is 
not  the  presumption  of  law  to  prevail  in  this,  as  in  ordinary 
cases,  that  the  instrument   was  duly  executed   (signed,  sealed 
and  delivered,  to  the  satisfaction  of  the  obligees)   on   the  day 
that  it  bears  date,  unless  some  tittle  of  evidence  can  be  ad- 
duced to  rebut  such  prima  facie  evidence?    Are  the  court  to 
presume  a  dereliction  of  duty  in  every  board  of  directors  for 
fifteen  years  in  violation  of  their  charter,  and  in  fraud  of  the 
stockholders,  whose  agents  they  were,   for  the  purpose  of  ap- 
proving the  cashier's  bond,  in  order  to  raise  a  conjecture  that 
they  suffered  this  officer  to  exercise  his  functions,  and  commit- 
ted to  his  custody  all  the  funds  of  the  institution  during  all  this 
period,  without  any   security  for  his  good  behaviour?    Rather 
will  the  couit  presume  oinnia  rite  acta  when  no  evidence  is 
adduced  to  shake  the  good  faith  and  intelligence  of  those  who 
have  acted  so  long  in  the  direction  of  that  public  institution.   It 
is  urged  further,  that  there  must  have  been  an  acceptance  by  the 
president  and  eight  directors;  and.that  the  bare  custody  of  the 
bond  can  be  no  evidence  of  their  satisfaction  with  the  security, 
and  the  ease  is  compared  to  bonds  lodged  on  file  on  appeals  and 
writs  of  error.     Without  examining  the  positions  advanced  re- 


074  CASES  IN  THE  COURT  OF  APPEALS 

TJjno:*  HANK  or  MARYLAND  v.   RIDGELT  — 1827. 

specting  such  bonds,  which  it  is  conceived  are  not  sound,  it  is 
sufficient  for  our  purpose  to  reply,  that  the  cases  are  not  at  all 
analagous.  The  persons  who  were  to  approve  this  bond  were 
the  avowed  agents  of  the  obligees  in  their  corporate  character— 
a  board  of  perpetual  succession,  and  the  same  persons  who  have 
the  custody  and  control  of  all  the  bonds,  deeds  and  muniments 
of  the  corporation.  Their  possession  is  that  of  the  corporate 
body  itself.  As  well  might  it  be  contended,  that  the  bank  had 
no  title  to  the  lot  on  which  their  banking-house  stands,  because 
that  was  only  built  by  their  president  and  directors,  and  there 
does  not  appear  any  endorsement  on  the  deed  corresponding 
with  its  date  of  their  acceptance  of  the  grant,  and  no  entry  in 
their  books  of  a  meeting  of  the  board  on  that  day,  nor  of  the 
number  of  directors  who  were  present  when  the  grant  of  that 
lot  was  accepted  by  a  solemn  vote.  The  universal  practice  of 
all  corporate  bodies  throughout  this  country,  and  of  all  judicial 
and  executive  public  officers  must  be  violated,  and  all  sheriff's, 
guardian's  and  administration  bonds  must  be  cancelled  to  make 
way  for  this  unfledged  novelty!  We  humbly  think  that  inge- 
nious argument  must  be  sustained  by  something  more  weighty 
than  a  single  nisi  prius  decision,  however  respectable,  before 
this  enlightened  tribunal  will  be  induced  to  plunge  the  people 
of  this  state  into  .this  unfathomable  gulf  of  uncertainty,  respect- 
ing all  our  public  securities.  It  is  thought  unnecessary  to  pur- 
sue this  branch  of  the  argument  through  the  wide  range  adopt- 
ed on  the  other  side,  especially  since  the  supreme  court  of  the 
United  States  have  decided  that  no  written  entry  is  essential 
to  the  validity  of  any  corporate  proceeding,  and  since  this 
court  have  recently  held  the  same  doctrine  in  a  much  stronger 
ease  than  the  present.  The  case  of  the  Farmers'  Bankvs  ff'r hit- 
ting ton  is  considered  by  us  as  quite  conclusive  on  this  subject; 
a  decision  entitled  to  higher  respect  certainly,  in  this  court, 
than  any  other  that  can  be  cited;  and  yet  the  learned  counsel 
on  the  other  side  take  no  notice  of  the  case,  nor  of  the  case  of 
Smith  vs  The  Governor,  fyc.  from  Dow's  Reports,  but  treat 
the  question  as  if  it  were  still  open. 

4.  As  to  the  demurrers,  relative  to  the  duration  of  the 
bond.  It  is  contended  by  the  appellants  that  the  defendant 
cannot  bring  in  question  the  duration  of  the  bond  upon  these 


OF  MARYLAND.  375 


BANK  OF    MAHYLANII  v.  RIPGELT  —  1827. 


demurrers;  and  that  if  these  breaches  are  well  assigned   in 
other  respects,  the  appellants  are  entitled  to  judgment  upon  all 
the  demurrers  in  this  record,  whatever  may  be  the  opinion  of 
the  court  as  to  the  legal  duration  of  the  bond.     The  court 
will  remark,  that  the  defendant  has    demurred  to   all  those 
breaches  in  the  replication  which  are  assigned  on  a  day  subse- 
quent to  the  6th  of  February  1817,  when  it  is  alleged  the  first 
charter  expired.     These  breaches  may  be  divided  into  three 
classes.      1st.   The  first  class  consists  of  those  in  which  the 
breaches  are  alleged  to  have  happened  on  "various  days  and 
times  from  the  day  of  the  date  of  the  bond  until  the  25th  of 
May  1819."     (These  are   the  4th,  8th,  12th,   16th  and  22d 
breaches.)    2d.  The  second  class  consists  of  those  breaches  con- 
taining three  distinct  epochs,  the  last  of  which  epoch  is  as- 
signed thus,  "and  on  various  days  and  times  from  the  6th  of 
February  1817,  until  the  25th  May  1819,"  (the  last  day  being 
subsequent  to  the  limitation  in  the  first  charter)  —  such  are  the 
1st,  5th,  9th,  13th  and  19th  breaches.      3d.  The  third   class  of 
breaches  is  where  a  specific  act  of  fraud  is  charged  on  a  parti- 
cular day,  that  being  a  day  subsequent  to  the  expiration  of  the 
old  charter  —  such  are  the  17th  and  ISth  breaches.     All  these 
breaches  are  demurred  to  by  general  demurrer,  on  the  ground 
that  the  time  mentioned  therein  is  too  broad  for  the  extension 
of  the  bond.     Is  the  time  mentioned  in  either  of  these  breaches 
material?   If  not,  the  demurrers  cannot  be  sustained.     As  to 
the  first  and  third  class  of  breaches,  the  court  will  observe, 
they  all  charged  tortious  acts,  and  in  cases  of  tort  the  day  laid 
is  perfectly  immaterial.    It  is  not  traversable;  nor  is  the  plain- 
tiff bound  to  prove  it  as  laid.    Replications  under  the  statute  of 
William  and  Mary  are  subject  to  precisely  the  same  rules  as 
declarations.     Lord  Coke  lays  down  the  established  doctrine  in 
such  cases.   (Co.  Litt.  282.    7  Bac.  M.  33.')  "When  the  jury 
upon  a  plea  of  not  guilty  in  modo  et  forma,  find  the  goods 
taken  on  a  different  day  from  that  charged,  though  charged  on 
a  day  certain,  still  the  verdict  is  good,  though  the  plea  is  in 
modo  et  format  for  the  substantial  part  of  the  issue  is  whe- 
ther the  goods  were  taken."  So  Chitty  in  his  treatise  on  plead- 
ing —  "The  statement  of  time  of  committing  injuries  ex  delicto 
,is  seldom  material.     It  may  be  proved  to  have  been  committed 


CASES  IN  THE  COURT  OF  APPEALS 


UNION  BANK  OF  MARTLAND  v.  HIDGKLT.  —  1827 

on  a  day  anterior  or  subsequent  to  that  stated  in  the  declaration, 
so  that  it  appears  to  have  been  before  action  brought."  1  Chit- 
ty's  Plead.  383.  2  C  kitty9  a  Plead.  367,  368.  White  vs  Stubba, 
2  Saund.  295,  (note  2.)  So  in  other  actions,  where  the  day  is 
not  material  in  the  declaration,  the  plaintiff  may,  when  it  is  ren- 
dered necessary  by  the  defendant's  plea,  vary  from  the  day  in 
the  replication,  and  it  is  no  departure.  Mitlor  vs  Walker,  2 
Saund.  5,  b.  (note.}  As  to  the  third  class  of  breaches  —  the 
above  remark*  are  equally  applicable,  and  also  the  further  ob- 
servation, that  here  are  three  epochs  quite  distinct  from  each 
other;  two  of  which  are  confessedly  good.  The  third  thert 
is  mere  surplusage.  It  may  be  safely  stricken  out,  and  yet  the 
Breach  be  well  assigned.  "It  is  a  rule  that  an  entire  replication 
bad  in  part  is  bad  for  the  whole;  but  this  rule  does  not  apply 
where  the  matter  objected  to  is  mere  surplusage."  1  Chitty,6l7. 
"Immaterial  averments  need  not  be  proved  if  they  can  be  safe- 
ly struck  out,"  1  Phil.  Evid.  162,  164,  (note.)  2  Phil.  Evid. 
82  Now  in  this  case  the  averment  of  breaches  from  6th  of 
February,  1817,  until  the  25th  of  May,  1819,  may  be  safely 
struck  out.  How  then  can  the  general  demurrer  to  the  whole: 
breach  be  supported?  Besides,  in  all  cases  where  the  time  is 
improperly  laid  the  demurrer  must  be  special.  It  is  only  de-* 
feet  in  form.  The  plaintiff  may  waive  the  time  laid  in  the? 
declaration  at  the  trial  if  he  will,  and  confine  his  proof  with- 
in the  time  of  his  title  in  trespass,  or  of  the  obligation  on  a 
collateral  bond.  Osborne  vs  Rogers,  1  Saund.  269,  (and  note 
21,)  and  Manchester  vs  Vale.  1  Saund.  24,  (note  It.)'  By 
the  general  demurrers  to  this  class  of  breaches,  the  defen- 
dant admits  the  cashier's  breach  of  duty  as  charged  on  vari-1 
ous  days  from  the  date  of  the  bond  until  February,  1817.  And 
are  not  the  plaintiffs  entitled  to  recover  for  such  defaults?  The 
defendant  should  have  demurred  to  the  averment  in  the  repli- 
cation, "that  R.  Higginbothom  continued  to  act  as  cashier 
under  and  in  pursuance  of  the  said  bond  until  the  25th  May, 
1819,"  which  averment  overreaches  all  the  breaches—  which. 
would  have  presented  the  question  of  the  legal  duration  of  the 
bond  to  the  court,  (the  acts  of  assembly  and  the  bond  being  set' 
forth  upon  the  record.)  Or  he  might  have  traversed  this  aver- 
went  specially,and  raised  the  question  of  law  at  the  trial, 


OF  MARYLAND.  377 


HA*K  OF   MARVLAND  v     RIDGELT  —  1827. 

might  have  taken  issue  on  these  breaches  and  have  objected  at 
the  trial  to  any  evidence  of  defaults  after  the  6th  February, 
1S17.  In  the  numerous  cases  cited  upon  this  branch  of  the  ar- 
gument where  this  question  has  been  agitated,  no  one  case  can 
be  found  where  the  very  learned  counsel  for  the  defendants, 
in  England  and  in  the  United  States,  ever  thought  they  could 
raise  this  question  by  demurring  to  the  time  laid  in  the 
breaches  assigned  under  the  statute.  In  Curling  vs  Chulklen, 
2  Maule  8?  Selwyn,  502,  and  in  Peppin  vs  Cooper,  2  Barn.  4" 
.?/<:/.  431,  as  well  as  in  the  cases  of  Leadley  vs  Evans,  9  Serg. 
and  Lowber,  308,  and  Miller  vs  Stewart,  9  Wheat,  702,  the 
question  was  fairly  raised,  by  a  special  plea  that  the  bond  was 
annual,  &.c.  Why  was  not  such  a  plea  put  in  here,  so  as  to  pre- 
sent to  the  judicial  eye  of  the  court  the  real  question  sought  to 
be  raised;  but  which  it  is  believed  cannot  be  raised  on  these 
pleadings  without  confounding  all  distinctions  between  material 
and  immaterial  averments.  These  views  of  the  preliminary 
point  under  the  second  head  of  the  argument,  would  seem  to 
render  the  further  discussion  of  the  other  points  under  this 
head  superfluous;  but  as  it  is  desirable  to  ascertain  the  opinion 
of  the  court  upon  all  the  points  that  may  hereafter  occur  in  the 
further  progress  of  this  cause,  it  has  been  deemed  proper  to  dis- 
cuss the  question  as  to  the  duration  of  the  bond,  upon  this  ar- 
gument. The  defendant's,  the  appellee's  counsel,  have  arrang- 
ed this  question  unde.r  two  heads.  1st.  That  this  was  an  an- 
nual bond;  and  2d.  That  it  was  only  coextensive  with  the  du- 
ration of  the  first  act  of  incorporation  —  which  will  be  consi- 
dered in  their  order.  1st.  Was  it  -an  annual  bond}  The 
whole  argument  on  the  other  side  rests  upon  a  false  assump- 
tion. that  the  cashier  was  an  annual  officer  because  he  held 
his  office  under  annual  officers,  viz.  the  president  and 
board  of  directors.  If  we  consider  the  nature  of  the  pow- 
er under  which  this  officer  was  created,  and  the  tenure  by 
which  he  held  his  office,  the  fallacy  of  this  argument  will  ful- 
ly appear.  The  act  of  incorporation  provides  for  the  annual 
election  of  the  president  and  the  directors;  fixes  the  day  and 
mode  of  their  election,  and  prescribes  their  respective  qualifi- 
cations. (See  fundamental  articles,  2,  4,  6,  sect.  10.)  Why 
are  no  such  provisions  made  respecting  the  office  of  cashier? 
VOL.  i.  48 


37S  CASES  IN  THE  COtTRT  OF  APPEALS 

Uwion   BANK  OF    MARTIAXI)  v.  RIDOELY. — 1827. 

'The  answer  is  obvious  from  article  10.  The  form  of  the  bond 
shows  that  he  was  to  bo  elected  during  good  behaviour.  No 
qualifications  are  prescribed  for  this  officer;  no  limitation  fixed 
to  his  offire;  no  provision  that  he  is  to  hold  over  in  case  no  elec- 
tion is  made  on  the  day  fixed,  as  in  the  case  of  directors.  The 
duration  of  each  board  regularly  terminates  on  the  1st  Monday 
of  July.  If  the  cashier  went  out  with  them,  how  happens  it 
that  the  20th  and  21st  article  requires  the  judges  of  the  election 
to  notify  the  cashier  of  the  peisons  elected  for  the  new  board? 
As  no  provision  is  made  for  his  holding  over,  of  course  he  goes 
out  of  office  the  day  preceding  the  election  of  the  new  board 
if  he  is  only  an  annual  officer  and  no  cashier  exists  until  one 
is  chosen  by  the  new  board.  Wherever  the  legislature  intend 
the  officer  shall  be  appointed  in  a  particular  manner,  and  hold 
Jor  a  specified  term,  these  are  designated,  (JJrt.  7.  and  art. 
9.)  But  the  cashier  is  to  be  elected  b}-  one  body,  and  his  bond 
is  to  be  approved  by  another.  The  president  has  no  voice  in 
his  election;  but  he  and  the  board  must  both  approve  of  the 
bond.  The  amount  oi  the  bond  is  fixed  by  the  legislature,  and 
also  the  form  of  it.  And  moreover,  we  find  in  the  charter  an 
oath  prescribed  for  this  officer,  and  for  no  other  agent  of  the 
corporation.  Is  the  cashier  thus  qualified,  thus  sworn,  thus 
appointed,  thus  approved,  to  be  viewed  as  the  mere  creature, 
deputy  and  valet  of  the  directors,  their  shadow  which  disap- 
pears with  their  body?  No!  He  is  merely  nominated  by  them 
in  the  execution  of  a  statutory  power,  but  when  nominated,  he 
is  in  by  virtue  of  the  statute,  and  under  the  power  itself,  as  an 
officer  of  the  corporation,  and  not  as  a  deputy  of  its  deputies,  the 
board  of  directors.  Fox  vs  Har  court,  1  Show.  516,  532.  S. 
C.  4  Mod.  Rep.  167,  and  5  Bac.  M.  tit.  Office  8?  Officers,  (H.) 
200.  If  a  grant  or  an  appointment  be  made  without  limitation, 
it  is  by  the  established  rules  of  the  common  law  a  grant  or  ap- 
pointment for  life.  If  a  statute  creates  an  office  "quamdiu 
tantum  se  bene  gesserit,"  the  officer  has  a  freehold  in  his  place 
by  the  common  law,  determinable  by  misdemeanor  alone.  If 
the  cashier  be  the  officer  of  the  corporation,  that  being  a  con- 
tinuing body,  his  office  is  of  course  coextensive  with  the  "cor- 
pus corpora  forum.."  His  acts  bind  the  corporation  and  not 
the  board  of  directors.  He  is  not  the  deputy  of  the  presi- 


OF  MARYLAND.  379 


UNION  BANK.  OF  MAUYLAND  v.  RIDGELT. — 1827. 

dent  and  board,  but  of  the  corporation.  His  bond  is  to  the 
corporation.  The  condition  recites  his  appointment  by  the 
corporation,  and  the  obligors  are  estopped  from  denying  it.  He 
is  known  to  the  public  as  the  officer  of  the  corporation,  and  as 
such  his  vouchers  are  recognized.  Their  notes,  their  corre- 
spondence, indeed  all  their  transactions  with  the  state  and  with 
other  banks  are  stamped  with  the  superscription  of  his  image. 
The  corporate  body,  though  invisible  in  itself,  is  beheld  through 
him  tanquam  in  speculo.  Is  it  not  better  for  the  corporation, 
for  the  public,  and  even  for  the  surety  himself,  that  tins  office 
should  be  permanent?  He  becomes  daily  more  perfect  from  ex- 
perience. He  has  a  regular  renewing  bounty  on  his  good  be- 
haviour. The  risk  of  his  surety  is  daily  diminished,  because 
his  cares  and  duties  become  every  day  less  onerous.  Ml  the 
cases  cited  on  the  other  side,  are  cases  of  subordinate  agents 
or  officers  acting  under  annual  officers,  and  binding  by  their 
acts  annual  officers  alone,  whose  power  is  forever  spent  with 
the  expiration  of  the  year;  but  wherever  the  persons  to  be  af- 
fected by  the  acts  of  such  subordinate  agents  have  a  continuing 
existence;  wherever  such  agents  represent  and  serve  a  con- 
tinuing body,  and  act  by  virtue  of  a  power  that  is  not  exhausted 
by  the  amotion  of  other  agents  holding  by  a  more  limited  tenure, 
such  subordinate  officers  hold  over.  Thus  in  the  case  of 
Curling  vs  Chalklen^  2  Maule  fy  Selwyn>  502,  cited  on  the 
other  side,  the  churchwardens  and  parishioners  acted  conjointly 
in  the  appointment  of  a  collector;  yet  his  office  was  held  a  con- 
tinuing office,  notwithstanding  the  churchwardens  were  an- 
nual officers,  and  were  removable  at  the  end  of  the  year;  be- 
cause the  parishioners  were  still  a  continuing  body  corporate, 
whom  the  collector  represented,  though  the  churchwardens 
were  gone,  by  whom  he  was  nominated.  The  same  observation 
will  apply  to  Hassel  vs  Long,  2  Maul.  $  Selw.  363,  and  Mil- 
ler vs  Stewart^  9  JVheaton,  702,  and  indeed  to  all  the  cases 
cited  against  us.  The  court  will  find  upon  examination  that 
these  are  all  cases  where  the  subordinate  officer  was  the  de- 
puty of  those  who  nominated  him — that  his  life  depended 
on  theirs  as  his  principals.  The  amotion  or  death  of  the 
principal  then  would  of  course  vacate  the  power.  But  be- 
cause the  governor  and  council,  who  are  annual  officers,  ap- 


380 


UNION  BANK  OF  MARYLAND  v.  RIDGKLY. — 1827 


point  the  judges  of  this  high  tribunal,  and  also  the  chancel- 
lor of  the  state,  was  it  ever  suggested  that  those  officers  were 
their  deputies  and  do  not  hold  their  offices  during  good  be- 
haviour? So  in  the  case  of  our  senators  and  registers  of  wills, 
though  the  appointing  power  may  be  extinct,  the  result  of  its 
exertion  may  be  and  is  lasting.  The  learned  counsel  opposed 
to  us  rely  on  the  words  of  the  Sth  section,  as  showing  that  the 
cashier  was  only  a  servant  "under  them;"  that  is,  under  the 
board  of  directors.  This  argument  would  reach  too  far;  as  it 
would  leave  to  the  hoard  the  same  discretion  as  to  the  necessity 
or  propriety  of  appointing  any  cashier  as  they  are  vested  with, 
in  relation  to  the  other  servants  or  officers  there  mentioned;  to 
whom  alone  these  words  ''under  them"  obviously  refer;  such 
as  the  porter,  the  book-keepers,  tellers,  &c.  The  cashier  is  as 
necessary  an  officer  of  the  corporation  as  the  president.  The 
board  of  directors  appoint  both,  and  it  might  just  as  well  be 
contended  that  the  president  is  only  a  deputy  of  the  board  of 
directors  and  not  an  integral  part  of  the  corporation,  as  that  the 
cashier  is.  2d.  Does  the  bond  extend  beyond  the  6th  Februa- 
ry, 1817?  This  may  be  answered  by  another  question — Is  this 
corporation  which  sues  identical  with  that  to  which  the  bond 
was  given  and  to  whom  the  service  of  the  cashier  was  condi- 
tioned to  be  performed?  If  so,  the  bond  is  sufficiently  broad 
to  cover  the  whole  time  of  R.  Higginbot horn's  service  as 
cashier  of  the  president  and  directors  of  the  Union  Bank.  It 
is  to  be  borne  constantly  in  mind,  that  the  words,  the  very 
terms  of  the  bond,  cover  the  whale  time  that  Higginbothom 
should  hold  the  office.  There  is  no  limitation  in  the  preamble 
or  in  any  other  part  of  the  bond,  looking  to  the  expiration  of 
the  first  charter.  His  appointment  was  not  coextensive  with 
their  charter.  It  was  during  good  behaviour.  He  held  by  no 
other  tenure  before  1817,  and  by  the  same  tenure  afterwards. 
Here  was  no  new  appointment  of  Higginbothom  after  the  new 
charter,  and  if  he  did  not  hold  his  office  legally  afterwards  by 
virtue  of  his  first  appointment  at  the  time  this  bond  was  given, 
then  all  his  subsequent  acts  were  invalid  and  did  not  bind  the 
corporation.  He  had  no  power,  if  this  argument  be  well  found- 
ed, to  sign  or  issue  bills,  to  discharge  debts  or  receive  deposits, 
or  pay  checks,  &c.  so  as  to  bind  the  stockholders.  He  waa 


OF  MARYLAND.  381 


Uwio*  BANK  OF  MARYLAND   ».'.    KnmEi.i. — IB   7 


either  cashier  to  all  intents  and  purposes  under  his  first  ap- 
pointment from  1817  to  1819,  or  not.     If  the  former,  then 
the  surety  has  undertaken  for  his  fidelity  during  that  period', 
because  no  shorter  period   is  Kmitcd  hy  the  bond  than   during 
his  continuance  in  that  service  of  those  who  appointed  him.    If 
the  latter,  then  no  act  of  the  cashier  after  February  6,   1817, 
is  valid  in  law.    'And  the  same  construction  which  will  absolve 
the  surety  here  will  annul  and  cancel  every  official  act  of  Hig- 
ginbothom  respecting  the  concerns  of  the  bank  during  those 
two  years.     If  the  corporation  after  1817  was  not  one  and  the 
same  with  that  before,  then  no  part  of  the  property,  funds  or 
notes  of  the  old  corporation  belongs  to  this;  no  debts  owing  by 
or  to  the  old  corporation  can  survive  to  this;  nor  could  the  pre- 
sent plaintiffs  maintain  a  suit  upon  this  bond   even  against  the 
cashier  himself,  because  they  are  not  the  obligees  according  to 
that  construction.   But  in  Scarboro  vs  Butler,  2  Levintz,  237, 
it  was  held  too  clear  for  argument,  that  a  debt  due  to  a  corpora- 
tion is  also  due  to  the  second  corporation  after  a  renewal  of  its 
charter,  even  though  the  name  ot  the  obligees  is  changed,  and 
the  debt  shall  be  recovered  in  the  new  name.   So  it  is  laid  down 
by  Lord  Coke.,  (Co.  Lit.  52,  b.)  that  an  attorney's  power  is 
not  countermanded  even   by  a  dissolution   of  the  corporation. 
Shepman  vs    Thompson,   Willes's   Rep.    105.       Wynne  vs 
Thomas,  Ib.  565.   2  Livermore  on  Jlgency,  298.     Was  A.he 
duration  of  this  bond  then  extinguished  when,  the  service  con- 
tinued'to  be  to  the  same  persons  and  the  terms  of  the  condition 
are  made  coextensive  with  such  service?     When  the  defendant 
signed  this  bond,  fixing  the  time  of  service  under  that  appoint- 
ment as  the  only  measure  of  its  duration,  he  must  have  known 
that  the  legislature  might  with  the  concurrence  of  the  bank  and 
of  the  cashier  protract  his  risk  and  continue  the  officer  beyond 
the  time  limited  by  the  first  law.      Why  did  he  not  provide 
against  this  by  the  terms  of  the  bo  d?     As  he  did  not,  can  he 
now  ask  the  court  to  insert  for  him  a  new  limitation  in  the  con- 
tract and  restrict  it  to  the  duration  of  the  first  charter,  when  he 
himself  has  fixed  the  limitation,  not  by  that,  but  by  the  term 
of  service?     Suppose  he  had  declared  by  parol  at  the  time  he 
signed  the  bond,  that  he  intended  it  should   only  endure  as 
long  as  the  first  charter.     The  court  would  not  admit  of  such 


382  CASES  IX  THE  COURT  OF  APPEALS 

UNION  BANK  OF  MARYLAND  v.    KIDGELT  — 1827. 

parol  explanation  of  his  intention  to  contradict  the  plain  im- 
port of  the  terms  used  by  him  in  the  writing.  If  the  terms  of 
service  of  that  corporate  body,  is  departed  from,  by  construc- 
tion, what  rule  can  the  court  adopt?  Shall  it  be  a  vague  con~ 
jecture  as  to  the  variance  of  risk?  Then  every  change  of  the 
clerks,  every  augmentation  of  the  capital  of  the  bank  called  in, 
every  imposition  of  new  duties  upon  the  cashier  by  subsequent 
by-laws,  varied  the  risk  of  the  surety,  by  enhancing  the  re- 
sponsibility of  the  cashier.  If  the  court  is  to  speculate  on  the 
political  conjectures  of  the  surety  at  the  time,  the  practice  of 
the  legislature  of  this  state  must  have  led  him  to  foresee  that 
the  charter  would  probably  be  renewed.  Every  charter  had 
been  renewed  in  Maryland  whose  limitation  had  run  out.  Such 
were  the  Baltimore  Insurance  Company,  incorporated  by 
act  1795,  ch.  59,  for  nine  years,  renewed  1S04,  ch.  37;  the 
Maryland  Insurance  Company  by  act  1795,  ch.  60,  and  1804, 
ch.  106,  and  the  charter  of  Baltimore  city  continued  1798. 
As  he  made  no  provision  for  a  limited  time  of  service,  he  con- 
stituted the  cashier  his  agent  to  extend  the  period  from  year 
to  year,  with  the  concurrence  of  the  bank,  so  long  as  both  should 
assent  to  his  holding  the  office.  If  the  cashier's  fidelity  be- 
came questionable,  or  his  defaults  known,  the  surety  could  at 
any  time  discharge  himself  by  notifying  the  other  party,  and 
requesting  his  removal.  But  after  standing  by  from  the  year 
1814,  (when  the  first  act  of  assembly  was  published,  renewing 
the  charter,)  until  1819,  and  seeing  this  cashier  continuing  to 
hold  his  office,  and  knowing  that  his  own  bond  was  in  possession 
of  the  bank,  guaranteeing  the  faithful  service  of  Higginbothom, 
shall  the  defendant  now  be  permitted  to  say  that  he  was  not  his 
surety  for  the  two  last  years  of  his  service?  We  do  not  con- 
tend, that  the  surety  is  ever  to  be  held  beyond  the  strict  scope 
and  letter  of  his  engagement.  We  admit  that  he  is  not  to  be 
made  constructively  liable,  but  we  know  of  no  case  where  he 
has  been  relieved  in  a  court  of  law  from  the  plain  contract,  be- 
cause he  has  received  no  value  for  his  undertaking.  How  do 
the  cases,  which  will  no  doubt  be  cited  on  this  point  against  us, 
trench  upon  our  doctrines?  They  consist  of  three  classes.  1st. 
Those,  where  there  was  an  express  limitation  in  point  of  time 
by  reciting  the  duration  of  the  office,  or  referring  to  the  law 


OP  MARYLAND. 


U.vios  BANK  OF  MARYLAND  v.    KMIGKLY.  — 1827. 

which  limited  it.  And  the  default  occurred  subseqtient  to  the 
express  limitation  in  the  engagement.  Such  are  Arlington  vs 
Merrick,  2  Saund.  412.  Liverpool  Water  Company  vs  At- 
kinson, 6  East,  507.  Wardens  of  St.  Saviour  vs  Bostock, 
5  Bos.  4-  Pull.  175.  Hassell  8?  Chirk  vs  Long,  2  Maul.  <£• 
Selw.  363;  and  United  States  vs  Kirkpatrick,  9  Wheat.  702. 
2d.  Those  where  the  persons  hringing  the  suit  were  different 
from  those  contracted  with,  and  one  or  more  of  the  plaintiffs 
had  not  been  obligees  of  the  contract,  or  sued  for  different  in- 
terests; as  Wright  vs  Russell,  3  Wils.  530;  where  the  contract 
was  with  Wright  as  a  sole  trader,  and  he  sought  in  that  suit  to- 
charge  the  surety  for  his  moiety  of  co-partnership  loss.  So  in 
Barker  vs  Parker,  1  T.  R.  257.  The  bond  was  to  the  testator 
for  the  fidelity  of  clerk  in  his  service.  After  his  death  the  ex- 
ecutor carried  on  the  trade,  and  sued  for  a  loss  in  such  distinct 
trade.  The  court  very  properly  held  it  a  distinct  concern 
from  the  business  of  the  testator,  and  that  the  bond  did  not 
survive  to  the  executor,  so  as  to  cover  defaults  in  his  ser- 
vice. 3d.  Cases  of  partnership  bonds,  where  one  partner  die? 
or  goes  out,  or  a  new  one  comes  in.  In  all  these  cases,  the  in- 
terest that  accrues  after  such  event,  is  a  distinct  interest  from  the 
previous  one  which  was  guaranteed,  and  the  courts  have  held, 
that  the  bond  did  not  extend  to  a  new  partnership^  because,  the 
characters  of  the  partners  was  an  essential  ingredient  in  the  con- 
tract. Such  are  the  cases  of  Strange  vs  Lee,  3  East,  484-9. 
Pepin  vs  Cooper,  2  Barn.  4'  A/d.  421.  Weston  vs  Barton, 
4  Taunt.  67  3.  Myers  vs  Edge.  7  T.  R.  250.  Lead  ley  vs 
Evans,  9  Serg.  4"  Lowb.  30G.  But  where  the  bond  is  given 
to  a  fluctuating  body,  the  change  of  the  members  does  not  de- 
stroy the  obligation  of  the  bond,  because  individual  character 
does  not  enter  in  the  consideration  of  the  surety  from  the  very 
nature  of  the  association.  The  case  of  corporations  is  made  an 
express  exception  from  the  general  rules  in  the  above  cases  by- 
Lord  Ellenborough,  in  Strange  vs  Lee.  The  same  doctrine 
is  laid  down  in  Medcalf  vs  Bruin,  12  East,  399;  and  cases 
there  cited.  Barclay  vs  Lucas,  \  T.  Rep  291,  (note  a.) 
Dance  vs  Girdler,  4  Bos.  4*  Pull.  34,  41.  Ka&sell  4*  Clark 
vs  Long,  2  Maule.fy  Selw.  363.  Miller  vs  Stuart,  9  Wheaton, 
680;  and  especially,  Curling  vs  Chalklen,  3  Maule  4* 


384  CASES  IN  THE  COURT  OF  APPEALS 

UVION  BAXK  OF  MAHTLASD  y.  HIIIRELY.  — 1827. 

502.  One  of  those  cases  turned  upon  the  circumstance  that  the 
bond  was  given  to  a  voluntary  association,  and  default  occur- 
red after  it  was  incorporated;  held,  that  not  being  incorporat- 
ed, the  obligees  could  not  transmit  the  obligation  to  their  suc- 
cessors, but  only  to  their  individual  administrators  or  executors. 
In  the  case  of  Barclay  vs  Lucas,  Lord  Mansfield,  endeavour- 
ed to  establish  a  different  doctrine,  but  failed,-  although  the  prin- 
ciples he  there  asserts  are  fully  sanctioned  by  all  subsequent 
decisions,  that  if  it  had  been  a  case  where  the  bond  could  be 
given  to  the  house  or  firm,  it  would  continue  in  force  as 
long  as  the  house  should  exist.  Now  the  only  case  where  it 
can  be  so  given  consistently  with  the  rules  of  law  is,  that  ot" 
corporations  whose  obligations  are  transmitted  to  -successors. 
But.  here  are  no  successors;  it  is  the  identical  person  who 
sues,  with  whom  the  bond  was  made,  the  first  (,orporate  body 
never  did  expire;  its  life  was  never  suspended  for  an  instant. 
Higginbot  horn  reld  in  1819  under  the  same  appointment  that 
he  held  in  1805.  His  commission  was  the  same;  the  obligees 
were  the  same;  and  his  duties  were  the  same  in  1819,  as 
when  the  bond  was  given;  the  r.ew  law  did  not  operate  as  a 
grant,  but  as  a  confirmation.  If  a  temporary  law  be  continued 
by  another,  the  former  statute  is  as  if  it  had  been  made  per- 
petual at  first.  Via.  Ah.  tit.  Statutes,  513.  6  Bac.  Jib.  372. 
Shepman  vs  Ilenbest,  4  T.  K.  114.  A  covenant  runs  with  a 
corporation,  though  the  charter  be  renewed.  4  Leon.  187,  case 
290.  So  the  new  body  may  sue  for  breaches  as  well  before  as 
afterwards.  Lee  vs  Waring,  3Desaussure,7Q,73.  Copley 
vs  Delaitnoy,  2  Ld.  Itaym.  1050.  Burland  vs  7'yler,  Ib. 
1391.  Lee  vs  Pilney,  Ib.  1513.  Vin.  Jib.  tit.  Covenant, 
112,  416.  The  case  of  a  covenant  by  a  lessee  for  life  to  a  cor- 
poration sole,  to  victual  the  cellerer.  The  corporation  was  dis- 
solved, and  possession  given  to  a  new  body,  the  lessee  was  held 
bound  to  victual  the  steward  of  the  new  body;  this  is  a  case 
precisely  in  point.  Finally,  if  the  cashier  be  the  deputy  of  the 
corporation,  and  his  principal  still  lives  and  breathes,  consi- 
ders, approves  or  condemns,  is  still  occupied  in  the  same  busi- 
ness, and  in  the  same  place,  under  the  same  charter  and  authori- 
ty; so  is  his  deputy  in  full  life,  vigour  and  health,  with  all  his 
functions  unimpaired.  As  well  might  we  dispute  the  identity 


OF  MARYLAND*  385 


N'K.  OF  MAHVLAXII  v .  RiDrrKtT.— 1827. 


of  our  image  in  a  clear  running  stream,  because  the  drops 
that  reflected  it  a  moment  since  are  not  the  same  that  reflect  it 
now,  as  to  deny  that  the  cashier  of  the  seventh  of  February, 
1817,  was  the  same  officer  that  acted  that  day,  the  hour,  the 
moment,  the  punctuin  temporis  before.  Who  cfan  catch  the 
last  glimpse  of  the  old  charter,  or  the  first  of  the  new? 

5.  As  to  the  plaintiffs'  2d,  3d  and  6th  bills  of  exceptions* 
1st.  Henry  Payson  was  u  competent  witness  to  prove  him- 
self the  depositary  of  the  book  called  the  By-Laws,  &c.  as  a 
muniment  of  the  bank.  The  case  of  Rex  vs  Net  her  throng,  2 
Maule  4'  Selw.  337,  is  precisely  in  point,  and  in  that  case  the 
interest  of  the  witness  was  admitted.  Northrop  vs  Speary,  1 
Day's  Rep.  23.  Peak.  Evid.  155, 169.  Moor  vsPitt,  1  Ventr, 
359.  •  IVeller  vs  The  Governors  of  the  Foundling  Hospital, 
Peake,  N.  P.  153;  The  objection  on  the  other  side  that  he 
had  ceased  to  be  the  depositary  in  May  1819,  and  therefore  not 
Competent,  is  singular,  because  the  facts  offered  to  be  proved, 
occurred  while  Paysonwas  the  depositary  and  Higginbothom 
was  cashier.  He  alone  of  course  could  identify  the  by-laws 
which  had  prescribed  the  cashier's  duties  under  this  bond,  and, 
if  he  were  a  competent  witness,  to  prove  himself  the  deposita- 
ry of  this  book.  The  decision  of  the  county  court  was  erro- 
neous as  stated  in  the  plaintiffs'  2d  exception;  because  they  held 
him  incompetent  to  prove  any  of  the  matters  offered  to  be 
proved  by  him.  2dly.  The  by-laws  were  sufficiently  proved. 
These  were  the  rules  of  duty  prescribed  for  the  cashier,  and 
under  which  he  acted;  They  are  proved  in  toto  as  to  the  ca- 
ahier's  duties,  the  only  point  material,  by  James  Ji.  Buchanan, 
by  Dunbar  and  Goldsmith,  and  the  genuineness  of  the  book 
was  proved  by  Jona.  Pinkney.  All  the  witnesses  prove  the 
19th  article  prescribing  his  own  duties  to  be  in  the  handwrit- 
ing of  Higginbothom.  The  court  below  proceeded  on  the 
ground  that  a  written  entry  was  the  only  legal  evidence  of  the 
appointment  of  a  cashier  or  of  the  rules  of  his  conduct.  As 
this  question  has  been  discussed  under  the  first  division  of  the 
argument,  it  will  not  be  repeated  here.  By  the  charter,  (9th 
sect.)  the  president  and  directors  were  authorised  not  only  to 
make  by-laws,  but  such  rules,  orders  and  regulations,  for  the  go- 
vernment of  the  officers  and  servants  of  the  bank,  as  they  should 
VOL  i,  49 


CASES  IN  THE  COURT  OF  APPEALS 


UNIOV  HANK  OF  MARYLAND  v.  RIDGELY.  —  1827. 


see  fit,  either  in  writing  or  otherwise;  and  Ridgely  guaranteed 
Higginbothom  should  faithfully  perform  such  rules  and  regu- 
lations whether  in  writing  or  not.  John  Hollins,  a  former  di- 
rector, proves  that  these  by-laws  offeree!  were  adopted  and  used 
by  the  bank,  although  he  could  not  identify  the  book;  but  the 
plaintiffs  gave  other  evidence  that  there  was  no  other  book  in 
which  the  proceedings  of  the  board  were  entered.  How  coujd 
the  rules  of  conduct  be  better  identified  and  established? 
3d.  As  to  the.v/a?M  bill  of  exceptions  —  (The  admissibility  of 
the  books  in  evidence.}  It  appears  that  the  court  below  on 
this  bill  of  exceptions  rejected  all  evidence  of  the  truth  of  the 
breaches,  before  the  jury  had  found  the  truth  of  the  matters  of 
fact  alleged  in  the  sixth  plea;  the  court  thus  assuming  the  ques- 
tion of  fact,  that  the  bond  was  so  delivered  as  was  stated  in  the 
plea.  The  opinion  given  on  the  6th  plea  only  ascertained  what 
was  sufficient  evidence  of  acceptance  of  the  bond.  And  the 
question  whether  it  was  delivered  conditionally  to  await  such 
acceptance  or  not,  was  a  pure  question  of  fact,  and  not  cover- 
ed by  the  opinion  of  the  court.  Delivery  by  obligor,  and  le- 
gal acceptance  by  obligee,  are  two  distinct  matters.  The  opi- 
nion of  the  court  assumes  that  absolute  delivery  would  not  be 
good  and  sufficient,  however  satisfactory;  that  there  can  be  no 
presumed  assent  of  the  obligee,  but  there  must  be  written  ac- 
ceptance to  make  it  his  (the  obligor's,)  deed.  Deed,  or  not,  is 
a  question  for  the  jury.  Nominal  damages  ought  to  be  assess- 
ed on  all  the  breaches,  and  if  nominal,  why  not  real,  by  the 
same  jury  that  tried  the  issues?  They  had  a  right  to  find  a  ver- 
dict against  the  direction  of  the  court  upon  all  the  issues,  es- 
pecially on  the  sixth  plea,  and  the  court  had  no  right  to  reject 
evidence  legal  upon  one  issue,  upon  the  presumption  that  the 
jury  would  find  another  issue  conformably  to  the  direction  of 
the  court  which  would  render  such  issue  nugatory.  If  the  evi- 
dence offered  here  was  admissible  before  the  court  had  express- 
ed its  opinion  on  the  sixth  plea,  it  was  admissible  after.  The 
competency  of  evidence  does  not  depend  upon  the  order  in 
which  the  issues  are  tried;  there  being  no  legal  evidence  of  the 
bond  in  the  opinion  of  the  court.  When  the  fourth  and  fifth 
exceptions  were  signed  by  the  court,  it  did  not  preclude  the 
plaintiffs  from  offering  further  proof  of  it  in  a  later  stage  of  the 


OF  MARYLAND.  387 


UMOM  BANK  OF  MAUYLAU  r.  RIDGKLY. — 1827. 


case.  At  all  events,  all  the  issues  were  on  trial  together,  and 
were  to  be  found  by  the.  same  verdict,  and  the  court  had  no 
right  to  shut  out  evidence  to  prove  the  breaches  assigned,  upon 
a  presumption  that  the  jury  would  find  that  there  was  no  bond.  ' 
The  court  decided  both  law  and  fact  on  the  issue  upon  the  sixth 
plea,  in  order  to  exclude  this  evidence.  4th.  *3s  to  the  proof 
of  the  books. — They  are  public  corporation  books,  in  which 
the  state  itself  is  interested  to  a  large  amount;  of  a  corporate 
body  so  recognized  as  a  part  of  the  state,  that  some  of  its  offi- 
cers are  Appointed  annually  by  the  legislature,  under  whose  di- 
rection the  books  are  kept.  The  books  are  directed  to  be  in- 
spected by  the  treasurer  of  the  state,  and  are  as  much  public 
records  as  the  books  of  the  county  clerks,  surely  as  much  as 
those  of  the  bank  of  England,  and  other  public  corporations. 
Again,  the  genuineness  of  the  entries  or  their  falsity,  com- 
pared with  each  other,  was  alone  in  issue,  and  not  the  truth  of 
the  facts  which  those  entries  professed  to  assert.  It  is  one 
thing  to  offer  an  entry  to  prove  the  delivery  of  an  article,  or 
the  payment  or  receipt  of  money,  and  quite  another  to  prove 
merely  the  genuineness  of  the  entry  itself,  by  proving  that «/?. 
7?.  or  C.  made  such  an  entry;  and  that  he  made  others  incon- 
sistent with  it;  so  that  one  or  the  other  must  be  false.  Now, 
the  20th,  23d  and  25th  breaches  assigned,  put  in  issue  the  false 
entries  by  the  clerks  in  the  books,  as  the  consequence  of  the 
cashier's  neglect  of  duty;  and  the  10th  and  llth  breaches  put 
in  issue  the  charge,  that  the  cashier  fraudulently  caused  and 
permitted  deceptious  entries  to  be  made  in  these  books.  Bar- 
ry vs  Bebbington,  4  T.  R.  514.  Stead  vs  Heaton,  Ib.  669. 
St.  Lawrence,  vs  fVebb,  3  Bro.  Farl.  Cos.  640.  Price  vs  Earl 
of  Torrington,  1  Salk.  285.  Warren  vs  Greenville,  2  Stra. 
1 129.  How  were  these  breaches  to  be  proved?  Surely-  not  by 
the  conspirators,  even  if  present;  but  by  any  indifferent  witness 
who  could  prove  these  entries  to  be  made  by  them,  or  in  their 
handwriting — The  books  being  the  common  organ  of  deceit 
between  the  clerks  and  the  cashier.  Besides,  the  conspirators, 
Burt  and  Tanner,  could  not  have  been  compelled  to, answer, 
if  thev  had  been  present,  and  Hart  was  dead.  The  books  were 
not  offered  to  prove  per  se,  that  they  were  kept  under  the  su- 
perintendence of  Higginbothom,  but  that  fact  was  offered  to 


388  CASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK  OF  MARYLAND  v.  RIDOKLY. — 1827.  - 

be  proved  as  a  distinct  fact  by  other  evidence,  as  well  as  the 
fact  that  Jacob  Hart  was  dead.  Jill  the  books  were  offered, 
because  some  might  explain  the  others,  and  if  only  part  of 
.them  had  been  offered,  it  would  have  been  objected  to,  as  only 
a  mutilated  confession,  or  an  extract  from  a  deed,  &c.  Besides, 
if  these  are  to  be  considered  only  as  entries,  by  the  agents  of 
the  cashier  acting  under  his  superintendence,  they  would  have 
been  admissible  in  evidence;  because  the  witnesses  were  out  of 
the  jurisdiction,  and  not  within  the  reach  of  the  party,  and  their 
residence  unknown,  so  that  no  commission  could  be  issued.  Ni- 
chols vs  IVebb,  8  Wheat.  335,  336.  Owings  vs  Speed,  5 
Wheat.  423.  1  Phil.  Evid.  169.  Finally,  the  entries  were 
evidence  as  acts  covenanted  against  by  the  cashier  and  his 
surety.  They  both  knew  that  the  conduct  of  the  clerks  in 
keeping  these  books  was  subject  to  the  cashier's  superinten- 
dence. The  complaint  is,  that  he  did  not  superintend  their 
conduct  in  this  respect,  nor  report  their  defaults  to  the  board 
when  he  knew  it, 'as  was  made  his  duty  by  the  by-laws.  .We 
complain  that  he  knew  that  the  clerks  made  false  entries  in  the 
books  of  the  bank;  that  he  knew  that  they  received  money 
with  which  the  bank  was  chargeable,  which  they  did  not  credit 
to  the  depositors,  and  that  they  paid  out  money  of  the  bank  to 
persons  who  ought  not  to  receive  it.  Barry  vs  Bennington, 
4  T.  R.  514;  and  all  this  is  proved  by  their  own  confessions, 
•who  were  common  agents  between  the  cashier  and  the  bank. 
We  do  not  complain  that  he  did  not  perform  what  was  impos- 
sible, but  that  he  connived  at  all  these  acts  of  misconduct  in 
the  clerks.  In  the  case  relied  upon  on  the  other  side,  (Man- 
hattan Company  vs  Lydig.  4  Johns.  Rep.  377,)  the  depositor 
employed  a  clerk  out  of  his  proper  department,  and  the  court 
held  the  bank  liable  only  in  the  department  where  they  had 
employed  him.  It  is  said  we  did  not  offer  to  prove  his  con-.- 
nivance  at  the  false  entries.  The  question  is,  whether  this  was 
not  directly  in  issue;  and  if  so,  whether  the  evidence  offered 
did  not  tend  to  prove  the  issue?  Is  a  bill  of  exceptions  to  re- 
cite all  the  pleadings,  in  order  to  show  the  evidence  rejected, 
pertinent  to  the  issue,  or  will  not  'he  court  inspect  the  plead- 
ings to  see  whether  such  evidence  offered  could  in  any  way 
tend  to  prove  the  issue?  The  by-laws  proved  it  to  be  the  duty 


OP  MARYLAND.  38$ 


U«ios   BANK  OF    MARYLAND  v.  KIDGELT. — 1827. 

of  the  cashier  to  inspect  the  books;  his  duty  was  in  issue,  and 
if  the  books  were  offered  first,  were  they  to  be  rejected,  be- 
cause the  other  matters  in  the  same  issue,  were  not  first  proved? 
The  plaintiffs  had  a  right  to  prove  any  one  of  the  facts  in  issue, 
in  such  order  as  they  pleased,  and  the  natural  order  was  first 
to  prove  these  were  false  entries,  and  then  to  proceed  to  the 
proof  that  they  were  with  the  connivance  of  the  cashier;  and 
lastly,  that  this  was  a  violation  of  his  official  duty.  Upon  the 
whole,  it  is  submitted  to  the  court,  that  the  court  below  erred, 
not  only  in  all  the  points  involved  in  the  three  bills  of  excep~ 
tions  presented,  under  this  branch  of  the  argument,  but  also  in 
the  several  opinions  canvassed  in  the  two  first  branches  of 
this  argument.  And  that,  although  sureties  are  not  to  be  made 
liable  by  construction,  they  are  not  on  the  other  hand  to  be  re- 
lieved from  the  letter  and  spirit  of  their  solemn  engagements, 
upon  which  faith  has  been  reposed  by  multitudes  of  helpless 
members  of  the  community,  whose  all  has  been  embezzled  and 
squandered,  and  who  have  now  left  to  their  hopes,  no  other  re- 
source than  those  high  tribunals  of  justice  who  are  entrusted 
with  the  protection  of  their  rights  against  lawless  depredations. 
If  sympathy  is  to  approach  the  bench  in  behalf  of  the  surety, 
is  a  deaf  ear  to  be  turned  to  the  cry  of  the  widow  and  the  fa- 
therless?^.^ 

Taney,  R.  Johnson  and  Eichelbergcr,  for  the  appellee.  1st 
branch  of  the  argument.  1.  Points  on  the  plea  of  non  est 
factum — 1st,  4lh  and  5th  bills  of  exceptions.  1st.  The 
amendment  was  not  too  late.  The  court  had  the  right  to  per- 
mit it  to  be  made  at  the  time  it  was  done.  Act  of  1809,  ch. 
153,  sec.  1.  2d.  The  plaintiffs  were  not  surprised.  They  did 
not  ask  time  "to  prepare  to  support  their  cause."  There  can 
be  no  error  in  not  giving  them  time,  when  they  did  not  desire 
time.  3d.  The  plea  of  non  est  factum  is  not  inconsistent  (in 
the  legal  sense,  of  the  word,)  with  the  plea  of  performance. 
Steph.  on  Plead.  293.  1  Chitty's  Plead.  541.  Com.  Dig. 
lit.  Pleader,  (E  2,)  5  Bac.  rfb.448.  Wright  vs  fiussell,  3 

(~aj  The  preceding  Argument  of  the  Counsel  of  the  Appellants  is  intend- 
ed to  embrace  that  made  by  them,  as  well  in  the  opening  of  the  case,  as  in 
reply  to  the  Arguments  of  the  Counsel  of  the  Appellee., 


-390  CASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK  OF  MARYLAND  v.  RIDOF.LT. — 1827 

<•  ' • 

Wils.  536.  Peppinvs  Cooper,  2  Barn.  8?  Md.  432.  Dance 
vs  Girdler,  4  Bos.  4*  Pull.  34.  Macchllan  vs  Howard,  4  T. 
P.  194.  Jenkins  vs  Edwards,  5  T.  JR.  97.  4th.  The  special 
plea  of  non  est  factum,  does  not  throw  the  burthen  of  proof 
on  the  defendant.  There  is  no  issue  joined  on  the  special  cir- 
cumstances stated  in  the  plea.  The  affirmation  in  the  declara- 
tion, that  it  is  the  "writing  obligatory,"  of  the  party,  and  the 
denial  of  that  fact  in  the  plea,  makes  the  issue  between  the 
parties.  Upon  this  issue  the  affirmation  is  on  the  part  of  the,, 
plaintiff;  the  denial  on  the  part  of  the  defendant.  And  as  the 
plaintiff  holds  the  affirmative,  he  is,  according  to  the  settled 
Jule  in  courts  of  justice,  bound  to  prove  his  allegation.  In  the 
cases  of  infancy,  duress,  usury,  &c.  the  burthen  of  the  proof 
lies  on  the  defendant,  and  in  those  cases  the  plea  always  con- 
cludes with  a  verification,  and  the  issue  is  joined  on  the  matter 
alleged  in  the  plea,  in  which  issue  the  affirmation  is  on  the  part 
of  the  defendant,  and  the  denial  on  the  part  of  the  plaintiff. 
See  the  precedents,  2  Chit.  Plead.  464,  465,  &c.  In  the  case 
of  Bushell  vs  Passmore,  6  Mod.  217,  and  referred  to  in  5  Boc. 
Jibr.  373,  the  issue  was  joined  on  the  matter  alleged  in  the 
plea.  The  affirmation  of  the  defendant  was  traversed  by  the 
plaintiff,  and  issue  thereupon  joined.  On  that  issue  the  defen- 
dant held  the  affirmative,  and  the  plaintiff* the  negative;  and  it 
is  only  to  a  case  of  that  description  that  the  dictum  of  Holt 
can  be  supposed  to  apply.  If  the  issue  be  necessarily  on  the 
matter  alleged  in  the  plea,  then  the  plea  of  delivery  as  an  es- 
crow could  not  conclude  to  the  country.  If  the  substance  of 
the  plea  be  the  matter  stated  in  avoidance,  then,  as  this  is  new 
matter  alleged  by  the  defendant,  the  plea  must  conclude  with 
a  verification.  For  the  conclusion  to  the  country  is  never 
proper  unless  it  follows  the  denial  of  some  fact  alleged 
on  the  other  side.  It.  is  this  affirmation  on  one  side,  and 
negation  on  the  other,  which  makes  the  issue  between  the 
parties.  But  it  seems  to  be  well  settled,  that  the  conclusion 
TO  the  country  is  proper  in  a  plea  of  this  description.  2  Chit. 
Plead.  463,  (note  t,)  and  the  cases  referred  to  in  that  note. 
We  conclude,  therefore,  that  the  burthen  of  proof  is  on  the 
plaintiffs.  They  hold  the  affirmative  of  the  issue,  and  must 
prove  that  it  is  "the  writing  obligatory"  of  the  defendant. 


©F  MARYLAND.  391 


UNION  BANK  or  MARYLAND  v.    KIDGELIT. — 1827. 


5th.   It  is  contended  that  the  plaintiffs  have  not  proved  that  it  is 
the  deed  of  the  defendant.     The  only   proof  on   this  point  is 
stated  in  the  fourth  bill  of  exceptions;  that  the  bond  was  sign- 
ed and  sealed  by   the  defendant,  and  was  found  by  the  present 
cashier  of  the  plaintiffs,  in  the  manner  described  in  this  excep- 
tion, when  he  entered  on  his  office  of  cashier,  November  16, 
1S19.     The  bond,  is  dated  March  30,  1805.     There  is  no  sub- 
scribing witness  to  it,  and  it  does  not,  on  its  face,   purport  iu 
the  usual  form,  to  have  been  "signed,  sealed  and  delivered" 
by  the  defendant.     By  the  charter,  sect.  14,  of  the  fundamental 
articles,  it  could  not  be  the  bond  of  ihe  defendant  unless  it  wa* 
accepted  as  such  by  the  president  and  directors;  and  the  board 
which  accepted  the   bond   must  consist  of  the  president  and 
eight  directors.     No  business  but  that  of  ordinary  discounts 
could  be  done  by  a  smaller  board.      Vid.  rule  9th.     It  appears 
that  there  was  no  written  evidence  of  acceptance  by  the  bank. 
In  maintaining  the  proposition  above  stated,  it  is  insisted  that 
there  could  be  no  legal  acceptance  in  behalf  of  the  corporation 
unless  it  was  in  writing.     The  president  and  directors  are  the 
representatives  of  the  corporation,  and  could  do  no   corporate 
act  unless  they  were  assembled   together  in  the  character  of 
president  and  directors.     The  bond  in  question  could  be  legal- 
ly accepted  only  when  they  were  thus  assembled.   When  they 
are  thus  assembled,  they  have  no  common  voice  by  which  they 
may  be  heard  to  pronounce  that  they  are  satisfied  with  the  bond, 
and  thus  evidence  by  words  that  they  have  accepted  it.     They 
have  no  common  hand  which  can  be  seen  to  receive  the  paper, 
and  thus  evidence,  by  the  act,  that  they  are   satisfied   with  it 
Their  assent,  their  will,  cannot  be  evidenced  in  the  same  man- 
ner as  that  of  an  individual;  and   as  they   cannot  be  heard  to 
speak,  or  seen  when  they  act  like  an  individual,  it  seems  of  ne- 
cessity to  follow  thut  their  acts  must  be  proved  in  some  other 
manner;  that  is,   by  writing  or  the  common  seal.     Anciently, 
their  acts  could  be  evidenced   by  the   common  seal  only;  in 
modern  times  by  writing,  because  in  modern  times  the  writing 
may  be  proved  with  as  much  certainty  as  the   common  seal. 
The  proposition  now  under  discussion  is  supported  by  adjudged 
cases  as  \yell  as  by  sound  reason.     1  Fonb.  805,  (note,  o,)  ed. 
of  1807.     Bank  of  Columbia  vs  Patterson,  1  Crunch,  299, 


392  GASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK  OF  MARYLAND  v.   KIDGELY  — 1827. 

305.  Fleckner  vs  Bank  of  United  States,  8  Wheat.  357, 
358.  All  of  these  cases  imply,  that  the  corporate  act  must  be 
evidenced  by  writing;  and  this  is  in  analogy  to  the  proceedings 
of  all  political  as  well  as  corporate  bodies;  whether  those  bodies 
be  representative  or  primary,  they  all  keep  a  written  journal  of 
their  acts,  and  their  decisions  are  evidenced  by  the  writing  only. 
Any  other  rule  would  be  pregnant  with  mischief.  In  the 
Sank  of  Columbia  vs  Patterson,  it  was  admitted  in  the  case 
that  the  corporation  had  authorised  the  committee  to  make 
agreements  on  the  subject.  The  manner  in  which  such  an  au- 
thority from  a  corporation  must  be  proved  was  not  a  questioa 
before  the  court.  If  writing  is  necessary  to  confer  the  power, 
the  admission  included  it.  When,  therefore,  in  that  ease,  the 
court  speaks  of  the  evidence  of  the  contract,  they  speak  of  the 
promise  of  the  agent,  he  being  first  proved  to  have  been  duly 
appointed  by  the  corporation.  The  acts  and  promises  of  agents 
may,  doubtless,  be  proved  by  parol.  For  although  they  are 
the  agents  of  a  corporation,  yet  they  themselves  are  not  a  cor- 
poration. They  must  act,  and  promise,  and  contract  as  natural 
persons,  and  their  contracts  may,  therefore,  be  made  and  be  evi- 
denced like  the  contracts  of  other  individuals;  that  is,  by  words. 
It  is  hot  intended  to  maintain  that  in  every  case  of  express 
contracts  made  by  the  agent  of  a  corporation,  the  party  claim- 
ing the  benefit  of  the  contract  must  produce  written  evidence 
of  the  agent's  authority.  Although  a  corporation  can  neither 
be  seen  .nor  heard,  yet  in  legal  contemplation,  it  can  both  see  and 
hear.  And  if  it  permits  any  one  to  hold  himself  out  to  the 
public  as  their  agent  in  any  particular  business,  and  by  its  ac- 
quiescence induces  a  belief  in  the  agency,  the  corporation,  like 
an  individual,  would  be  bound  by  his  acts,  whether  the  agent 
was  lawfully  appointed  or  not.  The  law  will  not  sanction  the 
fraud  of  a  corporation,  sooner  than  that  of  an  individual.  So 
too  in  cases  of  implied  contracts.  In  some  of  these  cases  the 
contract  implied  is  a  mere  fiction  of  law  invented  for  the  pur" 
poses  of  justice.  When  the  law  implies  a  contract,  it  implies 
a  valid  contract,  a  legal  undertaking,  and  consequently  it  must 
and  does  imply  every  thing  that  is  necessary  for  that  purpose. 
If  a  writing  be  necessary  to  evidence  the  contract  of  the  cor- 
poration, the  law  implies  tho  promise,  in  writing  upon  the 


OF  MARYLAND. 


Utuox  BANK  OF   MAKTLAND  v.   RIDGELT  — 1827. 

principle  that  it  implies  the  promise  by  parol  in  the  case  of  an 
individual.  Both  are  equally  fictions,  and  the  one  can  as  pro- 
perly be  implied  as  the  other.  The  cases  of  parol  agreements 
by  the  duly  authorised  agent  of  a  corporation,  and  the  cases  of 
implied  contracts,  are  perfectly  consistent  with  the  principles 
now  contended  for.  The  cases  of  implied  contracts  prove  that 
a  corporation  may  contract  without  its  seal;  that  is,  without 
deed;  and  it  is  on  this  ground  that  assumpsit  is  maintained  on 
them.  But  they  do  not  prove  that  such  contracts  need  not  be 
in  writing.  They  do  not  touch  that  question.  If,  however, 
the  court  should  be  of  opinion,  that  "the  satisfaction"  of  the 
president  and  directors  might  be  declared  by  parol,  and  need 
not  be  evidenced  by  writing,  yet  it  is  contended,  that  such 
parol  acceptance  must  be  proved  to  have  been  .made  by  the 
president  and  eight  directors  duly  assembled;  and  that  the  mere 
possession  of  the  instrument  in  the  manner  and  at  the  time 
stated  in  the  exception,  is  not  of  itself  sufficient  evidence  of  such 
parol  acceptance.  It  may  be  admitted  for  the  sake  of  this  ar- 
gument, that  in  the  case  of  an  individual  obligee  his  possession 
of  the  instrument  is  of  itself  sufficient  evidence  of  the  delivery 
without  the  aid  of  any  other  circumstance,  provided  the  sign- 
ing and  sealing  by  the  obligor  be  proved  or  admitted.  Yet  this 
proposition  can  hardly  be  deemed  a  settled  one  in  regard  to  a 
deed,  and  is  well  worthy  of  the  deliberate  consideration  of  this 
court,  before  it  is  here  pronounced  to  be  a  general  rule  of  law. 
Bull.  N.  P.  250.  Talbot  vs  Hodson,  7  Taunt.  251,  (2  Serg.  Sf 
Lowb.  91.) 

But  conceding  the  proposition  to  be  true  in  the  case  of  an 
individual,  it  is  denied  that  the  same  rule  can  apply  in  this  case. 
The  reason  of  the  rule  would  fail — 1.  The  bond  in  question 
is  declared  upon  as  a  bond  dated  March  30,  1805.  In  order  to 
support  the  declaration  it  must  be  proved  as  a  bond  of  that  date. 
5  Bac.  Jib.  159,  160.  Now  in  the  case  of  an  individual  obli- 
gee there  is  at  the  date  of  the  instrument  a  person  in  existence 
and  in  a  condition,  to  accept,  and  no  steps  are  necessary  to  be 
taken  by  him  to  obtain  a  proper  attitude  for  receiving  it,  when 
the  delivery  is  tendered.  But  in  this  case  something  more  was 
necessary  than  the  mere  existence  of  the  corporation.  There 
must  also  have  been  a  board  convened  consisting  of  the  presi- 
VOL.  i.  50 


394  CASES  IN  THE  COtfRT  OP  APPEALS 

UNION  BANK  OF  MARII-AND  y.  KIDGELY. — 1827. 

dent  and  eight  directors,  in  order  to  accept  this  bond.  There 
must  have  been  a  board  larger  in  number  than  that  required  for 
the  ordinary  purposes  of  the  bank;  for  the  president  and  five 
directors  are  authorised  to  make  ordinary  discounts,  which  is 
the  usual  and  chief  business  of  the  bank.  There  is  no  evidence 
that  a  board  competent  to  accept  was  in  actual  existence,  that 
is,  assembled  together  on  the  day  averred  in  the  declaration? 
on  the  contrary,  the  minutes  of  the  bank  go  to  show  there  was 
no  such  board  on  that  day.  Yet  the  plaintiffs  insist  that  the 
jury  may,  from  the  fact  of  possession  in  1819,  presume  a  de- 
livery and  acceptance  on  the  30th  of  March,  1805,  without  of- 
fering any  evidence  that,  on  the  day  last  mentioned,  the  obli- 
gees or  any  body  for  them,  were  in  a  condition  capable  of  ac- 
cepting. Jackson  vs  Phipps,  12  Johns.  418,  422.  2.  In  the 
case  of  an  individual  obligee  the  bond  cannot  be  delivered  to 
him  as  an  escrow.  Whatever  conditions  may  be  annexed  t» 
the  delivery  by  the  obligoi  when  he  delivers  it  to  the  obligee, 
the  bond  is  absolute  according  to  its  tenor  the  moment  it  is  ac- 
cepted into  the  hand  of  the  obligee.  When,  therefore,  the 
obligee  is  found  in  possession  of  the  instrument,  it  is  not  a 
matter  of  speculation,  nor  even  a  subject  of  proof,  whether  it  is 
an  escrow  or  an  absolute  deed.  If  it  came  into  his  hands-  from 
the  obligor,  or  by  his  authority,  the  delivery  by  operation  of 
law  is  absolute  and  not  an  escrow.  His  possession,  therefore, 
may  be  deemed  evidence  of  an  absolute  delivery,  because  it 
-could  not  come  into  his  possession  without  his  consent  to  re- 
ceive it;  and  if  he  accepted,  it  was,  when  accepted,  necessarily 
an  absolute  deed  and  not  an  escrow.  In  the  case  of  an  indi- 
vidual then,  a  lawful  possession  by  the  obligee  is  inconsistent 
legally  with  any  other  state  of  things  than  an  absolute  delivery 
and  acceptance.  It  cannot,  lawfully,  get  into  his  hands  but  as 
the  deed  of  the  obligor,  and  the  law  will  not  presume  that  the 
possession  was  unlawfully  obtained.  But  in  this  case  it  is  entire- 
ly otherwise.  The  bond  may,  and  perhaps  must,  come  into 
the  possession  of  the  president  and  directors  as  an  escrow.  It 
must  come  into  the  hands  of  the  preside  it  and  directors  before 
they  can  pass  judgment  on  its  sufficiency;  and  after  it  is  in  their 
possession,  the  law  makes  it  an  escrow  until  they  have  declared 
their  approval  in  some  way.  This  instrument,  then,  may  have 


OP  MARYLAND.  395 


UWION  HANK  OF  MARYLAND  v.   KIDGELT. — 1827. 

come  into  their  hands  originally  as  an  escrotv;  their  possession 
is  consistent  with  its  being  an  escrow.  How,  then,  can  that 
possession  be  evidence  that  it  is  not  an  escroiv,  but  an  absolute 
deed?  As  they  would,  in  the  ordinary  course  of  business,  obtain 
possession  of  it  as  an  escrow,  it  would  seem  to  follow,  that  it 
should  be  presumed  to  be  an  escrow  until  the  plaintiffs  prove 
that  its  character  was  changed;  at  all  events  the  possession  is 
consistent  with  its  being  an  escrow  as  well  as  it  is  consistent 
with  its  being  an  absolute  deed.  The  possession,  therefore, 
cannot  be  evidence  that  it  was  not  an  escrow,  but  an  absolute 
deed.  If  there  was  not  a  board  to  act  upon  it,  when  it  was  re- 
ceived, it  would  naturally  and  properly  be  placed  where  it  was 
found  until  the  board  did  act  upon  it.  Indeed,  it  does  not  ap- 
pear from  the  testimony  to  have  been  out  of  the  possession  of 
the  cashier,  who  was  the  principal  obligor;  and  nothing  can  be 
inferred  from  his  acting  as  cashier  afterwards,  for  it  appears  in 
evidence  that  he  acted  as  cashier  for  more  than  two  months  be- 
fore the  bond  is  alleged  to  have  been  given.  3.  There  is  yet 
another  distinction  between  this  case  and  a  bond  to  an  indi- 
vidual obligee.  This  instrument  could  not  be  accepted  by  the 
corporation  aggregate;  that  is,  by  the  stockholders  themselves: 
it  could  not  be  accepted  by  agents  or  officers  appointed  by 
them,  for  they  had  not  the  power  to  make  an  election,  as  a  cor- 
poration, until  the  first  Monday  in  July,  1805.  The  persons 
named,  or  the  president  and  any  eight  of  them,  were  the  agents, 
constituted  by  law  to  act  in  behalf  of  the  corporation.  It  was 
a  special  authority  conferred  by  law,  and  in  all  cases  of  special 
authority,  the  power  given  must  appear  in  the  proceedings  to 
have  been  strictly  followed.  The  chancellor  is,  by  law,  the 
agent  of  the  oKligee,  to  approve  and  accept  for  him  a  writ  of 
error  bond.  The  county  court  has  the  like  authority  in  appeal 
bonds;  yet  it  never  has  been  supposed  that  such  a  bond,  found 
in  the  custody  of  the  officer  of  the  court  among  the  "archives 
and  valuable  papers  of  the  court,"  was  of  itself  evidence  that  it 
had  been  approved  and  accepted  by  the  chancellor,  or  the  coun- 
ty court,  without  the  aid  of  any  other  circumstance.  It  is  be- 
lieved it  never  can  be  so  held  in  the  cases  of  writs  of  error  . 
bonds  and  appeal  bonds,  and  this  case  is,  in  principle,  perfectly 
analogous  to  these  cases.  It  may^  also,  be  added  that  in  the 


396  CASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK  OF   MARYLAND  v.  RIHGBLT — 1827. 

case  of  an  absolute  deed,  or  a  bond  for  the  payment  of  money, 
the  party  obligee  or  grantee  being  in  possession,  may  be  pre- 
sumed to  have  accepted  it,   because  it  was  for  his  benefit  to  ac- 
cept it.     But,  in  this  case,  unless  the  security  was  good,  it  was 
not  for  the  benefit  of  the  corporation  to  accept  it,  and  there  is 
nothing  in  the  case  to  show  that  the  security  was  good;  and  no 
argument  can  be  drawn  from  the  fact  of  Hi gginbot horn's  con- 
tinuing to  act  as  cashier,  for  it  is  in  proof  that  he  acted  as  cashier 
for  more  than  two  months  without  any  bond.     For  aught  that 
appears  in  the  case,  it  may  have  been  the  interest  ef  the  corpo- 
ration to  refuse  this  bond  and   demand  better  security.     But, 
conceding  for  the  sake  of  ihe  argument,  that  the  possession   is 
sufficient  evidence  that  the  instrument  was  delivered  and   ac- 
cepted; yet  it  is  denied  that  it  can  be  evidence  of  the  delivery 
and  acceptance  on  the  day  it  bears  date,  which  is  the  day  al- 
leged in  pleading  by  the  plaintiffs,  &c.  to  be  proved  by  them. 
In  the  cases  in  which  it  has  been  held  that  a  deed  shall  be  pre- 
sumed to  have  been  delivered  on  the  day  it  bears  date,  it  will 
be  found  (or  is  to  be  inferred  from  the  period  at  which  the  de- 
cision was  made)  that  the  deed  upon  the  face  of  it  purported  to 
be  delivered  on  that  day.     The  bond,  in  the  body  of  it,  usually, 
and,  indeed,  always  certifies,  that  it  is  sealed  on  that  day.    The 
subscribing  witnesses  certify  that  it  was  "sealed  and  delivered" 
in  their  presence.     The  old  deeds,  therefore,  and  most  of  the 
modern,  bear  on  the  face  of  them  the  evidence  that  they  were 
completely  executed  on  the  day  they  bear  date.    Of  such  deeds 
it  may  reasonably  be  predicated  that  they  were  executed  at  the 
time  they  profess  to  have  been  executed;  and  it  is  ot  such  deeds, 
it  is  believed,  that  the  courts  speak  when  they  say  it  is  to  be 
presumed  they  were  executed  on  the  day  they  bear  date.    But, 
this  instrument,  although  it  professes  to  have  been  sealed  on 
March  30,  1805,  does  not  purport  to  have  been  delivered  on 
that  day;  and,  indeed,  does  not  on  the  face  of  it  contain  any 
evidence  that  it  was  delivered  at  all.     It  does  not,  therefore, 
come  within  the  reason  of  the  rule.     Again;  in  all  of  the  above 
mentioned  cases  there  was  a  body  in  existence  and  in  a  condi- 
tion to  accept  on  that  day;  and  it  so  appeared.     But,  in  this 
'  case,  there  is  no  such  evidence;  and,  indeed,  it  would  appear 
from  the  proceedings  of  the  bank,  that  there  was  not  on  the  30th 


OF  MARYLAND.  397 


BANK  OF  MARYtAwn  v.  RIPOELY.  —  1827. 


of  March,  1805,  a  meeting  of  the  president  and  eight  directors. 
Moreover,  it  is  believed  that  in  all  of  the  cases  in  which  the 
rule  is  laid  down,  the  precise  day  of  the  delivery  did  not  ma- 
terially affect  the  rights  and  obligations  of  the  parlies.  The 
date  of  the  delivery  was  not  of  the  substance  of  the  contract. 
But,  in  this  case  the  time  of  the  delivery  and  acceptance  is  of 
the  very  ess^iice  of  the  contract.  The  whole  extent  of  the  de- 
fendant's liability  depends  upon  the  time  it  was  accepted.  The 
time  is  not  less  material  than  his  signature  and  seal;  and  it  would 
seem  to  be  just  as  reasonable  to  presume  his  signature  and  seal, 
because  the  obligee  was  in  possession,  as  to  presume  the  precise 
time  of  delivery,  in  the  absence  of  all  proof  as  to  that  time. 
The  possession  itself  may  be  considered  as  equivocal,  for  it 
seems  to  have  been  in  the  possession  of  the  principal  obligor, 
and  in  his  power  and  under  his  control  until  1819.  The  in- 
strument in  question  is  a  common  law  instrument,  and  to  be 
proved  and  established  according  to  the  principles  of  the  com- 
mon law.  No  argument  can  be  drawn  from  promissory  notes 
and  other  instruments  of  modern  invention,  which  are  not  go- 
verned by  the  rules  of  the  common  law.  In  fine,  this  is  the 
case  of  a  surety  ;  it  is  one  of  that  class  of  cases  in  which  the  rights 
of  the  plaintiffs  are  strictly  scanned  and  no  implication  or  in- 
tendment  made  to  the  disadvantage  of  the  defendant.  Miller 
vs  Stewart,  9  Wheat.  702  703.  The  first  division  of  the 
argument,  that  is  the  points  arising  on  the  plea  of  non  est  fac- 
tum,  is  here  concluded.  As  these  questions  seemed  to  depend 
on  the  application  of  general  principles,  in  the  absence  of  ad- 
judged cases,  on  the  very  points  in  controversy  it  was  sup- 
posed that  it  would  be  more  satisfactory  to  the  court  to  state 
the  argument  somewhat  at  large.  Except  the  case  decided  by 
Ch.  J.  Marshall,  there  is,  perhaps,  no  case  directly  on  any  of 
the  points  in  controversy,  on  this  part  of  the  subject.  The 
other  points  of  the  case  will  be  more  briefly  disposed  of. 

2.  Jls  to  the  duration  of  the  bond.  The  points  under  this 
head  of  the  argument  arise  on  the  demurrer  to  the  first  breach 
assigned  in  the  replication  to  the  first  plea.  The  defendant's 
1st  plea  is  general  performance.  The  plaintiffs  reply,  and  assign 
as  the  first  breach  the  embezzlement  by  Higginbothom  of 
$50,000  on  various  days  and  times  between  the  date  of  the  bond 


398  GASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK  or  MARYLAND  v.   RIIHJELT. — 1827. 

(March  30,  1805,)  and  the  25th  of  May,  1819.  The  defen- 
dant demurred  to  this  breach,  and  the  judgment  of  the  court  be- 
Jow  was  in  his  favour.  If  the  breach  assigned  was  too  large, 
that  is,  if  the  condition  of  the  bond  did  not  cover  the  whole 
space  of  time,  the  plea  was  ill  on  demurrer,  and  the  judgment  of 
the  court,  therefore,  right. 

It  is  insisted  that  the  breach  assigned  was  too  large,  upon  the 
following  grounds:  1st.  It  is  contended,  that  if  the  instru- 
ment in  question  be  the  bond  of  the  appellee,  yet  he  was  not 
thereby  liable  as  the  security  of  Higginbothom  for  any  em«- 
bezzlement  which  took  place  after  the  first  Monday  in  July, 
1805,  at  which  time  a  new  election  of  directors  took  place. 
The  charter  directed  that  the  affairs  of  the  corporation  should 
be  conducted  by  the  president  and  directors;  see  sect.  7.  By 
sect.  6,  the  persons  there  named  are  to  act  as  the  president 
and  directors  until  the  first  Monday  in  July  1805,  and  until  a 
new  election  of  directors.  By  sec.  8,  the  directors  for  the 
time  being  have  power  to  appoint  a  cashier  and  such  other  of- 
ficers and  servants  under  them  as  may  be  necessary  lor  exe- 
cuting the  business  of  the  corporation.  The  cashier  then  was 
one  of  the  servants  under  the  directors,  to  enable  them  to  exe- 
cute the  business  of  the  corporation.  The  business  of  the  cor- 
poration was  to  be  managed  by  these  directors  until  the  first 
Monday  in  July  1805,  and  no  longer — provided  the  new  elec- 
tion took  place  on  that  day.  Now  as  the  president  and  direc- 
tors were  appointed  for  a  limited  time,  and  to  perform  certain 
duties,  and  the  cashier  was  a  deputy  or  servant  under  them  to 
aid  in  the  performance  of  those  duties,  it  is  insisted  that  his  ap- 
pointment cannot  endure  longer  than  that  of  the  appointing 
power.  In  other  words,  as  the  directors  themselves  had  no 
power  to  manage  the  business  of  the  corporation  after  the  first 
Monday  in  July  1805,  they  could  confer  no  power  to  do  so,  on 
any  agent  or  servant,  by  virtue  of  their  appointment.  They 
could  give  no  greater  power  to  their  servant,  the  cashier, 
than  they  themselves  had.  The  law  indeed  might  authorise 
them  to  appoint  for  a  longer  time,  but  as  the  law  does  not  pro- 
fess to  confer  such  a  power,  the  question  must  depend  upon  the 
general  doctrine  of  principal  and  deputy.  The  principles  above 
Stated  will  be  found  to  be  established  by  the  following  cases: 


OF  MARYLAND.  399 


Usiox  DANK  OF  MARYLAND  v.   KIDGEIT. — 1827. 

Lord  Arlington  vs  Merricke,  2  Saund.  411.  Liverpool  Wa- 
ter Works  vs  Atkinson,  6  East,  507.  The  King  vs  Corpora- 
tion of  Bedford  Level,  Ib.  363.  Wardens  of  St.  Saviour's 
'vs  Bostock,  5  Bos.  #  Pull.  175.  Hassell  vs  Long,  2  Maule. 
$  Selw.  363.  Peppin  vs  Cooper,  2  Barn.  $  tfld.  431.  Lead- 
ley  vs  Evans,  9  Serg.  <$•  Lowb.  306.  It  is  not  necessary  to  en- 
quire whether  the  president  and  directors  might  not  so  have 
taken  the  bond  as  to  hold  the  security  bound  for  a  longer  peri- 
riod.  The  above  cases,  it  is  conceived,  abundantly  show,  that 
the  bond  in  question  cannot  be  construed  to  hold  the  surety  li- 
able beyond  the  time  to  which  the  appointment  itself  was  li- 
mited. 2dly.  But  if  it  be  even  conceded,  for  the  sake  of  the 
argument,  that  the  above  proposition  cannot  be  maintained  up- 
on the  principles  and  authorities  above  stated,  yet  it  is  insisted 
that  the  defendant  was  not  liable  for  any  embezzlement  which 
took  place  after  February  6,  1817,  when  the  first  charter  ex- 
pired. It  may  be  admitted,  that  the  defendant  is  liable  to  the 
new  corporation,  to  the  full  extent  of  any  contract  he  made 
with  the  old  one,  no  matter  whether  the  bfeach  occurred  be- 
fore or  after  the  expiration  of  the  first  charter.  But  it  is  con- 
tended that  his  contract  could  not  be  enlarged  by  the  renewal 
of  the  charter.  His  liability  as  security  could  not  be  increased 
without  his  consent.  It  could  not  be  made  to  extend  to  times  or 
things  for  which  he  had  not  contracted.  When  he  entered  into 
the  contract  it  is  very  clear  that  as  the  law  then  stood  he  could 
not  be  liable  beyond  February  6,  1817.  The  days  of  the  cor- 
poration were  numbered,  and  they  ceased  to  exist  on  that  day. 
They  could,  by  no  possible  interpretation  of  the  charter,  ap- 
point a  servant  for  a  longer  period.  They  could  have  no  ser- 
vant after  that  time;  for  there  would,  as  the  law  then  stood,  be 
no  master  to  serve.  Can  a  new  law  enlarge  the  liability  ot  a 
surety  without  his  consent?  Is  the  contract  to  be  expounded  by 
the  law  as  it  was  when  the  contract  was  made?  Or,  is  it  to  be 
interpreted  by  laws  passed  afterwards?  It  is  believed  that  the 
answers  to  these  questions  can  hardly  be  a  matter  of  doubt. 
And  the  following  cases,  (if  cases  be  necessary  on  such  a  point,) 
it  is  hoped,  will  be  deemed  conclusive.  Fell  on  Guar.  116, 
117,  (note.)  Barker  vs  Parker,  \  T.fi.287.  Miller  vs.  Stew- 
art, 9  Wheat.  702.  United  States  vs  Kirkputrickt  Ib.  733. 


400  CASES  IN  THE  COURT  OP  APPEALS 

UNION  BASK  OF  MAUTLAND  v.  RIDOELY.  —  J827. 

Strange  vs  Lee,  3  East,  490.  Dance  vs  Girdler.  4  Bos.  4* 
Pull.  34.  Ludlow  vs  Simond,  2  Caine's  Cas.  in  Error,  1. 
The  present  case  bears  a  very  strong  analogy  to  that  of  Bar- 
ker vs  Parker,  1  T.  JR.  287.  There,  a  bond  was  given  with 
condition  that  a  clerk  should  serve  faithfully,  and  account  for 
all  money,  &c.  to  the  obligee  and  Ms  executors.  After  the 
death  of  the  obligee,  the  executors  continue  the  business  and 
retain  the  clerk  in  the  same  employment.  It  was  held,  that. 
the  obligor  was  not  liable  for  money  received  by  the  clerk  in 
the  service  of  the  executors.  Lord  Mansfield  says,  "This  is 
a  very  plain  case.  The  service  in  the  contemplation  of  the 
parties,  was  the  service  of  the  testator.  There  was  no  idea 
then  of  carrying  it  further."  Now,  in  the  present  case  the 
contract  of  the  defendant  was  to  secure  the  fidelity  of  a  ser- 
vant in  the  service  of  a  corporation.  This  corporation  is  a  le- 
gal, artificial  being,  depending  entirely  for  the  commencement, 
duration  and  termination  of  its  existence  upon  the  power  creat- 
ing it — the  legislature.  At  the  time  this  contract  of  the  de- 
fendant was  made,  there  was  a  legal  statutory  life  assigned  to 
this  legal,  artificial  being.  Was  not  then  the  service,  in  the 
contemplation  of  the  parties,  a  service  during  the  life  of  this 
artificial  being,  as  this  time  was  limited  at  the  time  of  the  con- 
tract? Was  there  any  idea  then  of  carrying  it  further?  When, 
the  charter  was  renewed,  the  corporation  became,  with  regard 
to  the  defendant  in  this  cause,  precisely  like  the  executors  with 
regard  to  the  defendant  in  the  case  of  Barker  vs  Parker. 
They  were,  as  to  him,  the  executors  of  the  old  corporation, 
retaining  the  same  servant  in  the  same  employment 

3.  Points  on  Evidence.  1.  The  first  question  under  this  head 
is  presented  by  the  plaintiffs'  second  bill  of  exceptions.  Was 
Henry  Pay  son,  who  at  the  time  of  the  trial  was  a  stockholder 
in  the  bank,  and  therefore  to  gain  by  a  verdict  for  the  plaintiffs, 
a  competent  witness?  1st.  It  is  in  the  first  place  insisted  that 
upon  the  general  rules  of  evidence  he  was  not  competent  to 
testify  in  support  of  his  own  interest.  2dly.  It  is  insisted  that 
he  was  not  excepted  out  of  the  general  rule  by  reason  of  being 
the  depositary  of  the  by-laws.  For  it  appears  by  the  excep- 
tion that  he  ceased  to  be  the  president  on  the  27th  of  May, 
1819,  and  consequently  at  that  time  ceased  to  be  the  deposita- 


OF  MARYLAND.  40J 


UNION   BANK  OF    MAIIYLAND  v.  RIVGELY. — 1827. 

ry.  2.  The  second  question  of  evidence  is  under  the  plain- 
tiffs' third  bill  of  exceptions,  upon  the  admissihility  of  the  writ- 
ing offered  as  the  by-laws  of  the  corporation.  The  court  re- 
fused to  suffer  the  writing  to  be  read  in  evidence  as  the  by-laws 
of  the  corporation.  It  was  offered  as  containing  the  written 
by-laws  of  the  corporation.  It  is  contended,  1st.  That  by- 
laws, ex  vi  termini, \v\  modern  times  mean  written  enactments, 
and  the  power  given  by  the  charter  ought  to  be  so  interpreted. 
The  cases  where  they  have  been  suffered  to  be  proved  by  parol, 
were  the  cases  of  ancient  corporations,  and  when  the  writing 
might  be  presumed  to  be  lost  2dly.  The  evidence  stated  in 
the  exception  does  not  prove  that  the  entire  paper  offered 
was  adopted  as  the  by-laws  of  the  corporation.  And  it  was 
that  particular  paper,  and  the  whole  too  of  that  particular 
paper,  that  was  offered  to  be  read  as  the  written  by-laws  of  the 
corporation.  It  is  not  identified  by  any  of  the  witnesses,  as 
the  paper  adopted  and  passed  by  the  corporation  as  their 
by-laws.  3dly.  The  paper  itself  on  the  face  of  it,  purports  to 
be  the  by-laws  of  the  association  and  not  of  the  corporation — 
See  art.  18,  and  art.  26.  The  parol  evidence  was  offered  to 
contradict  the  writing.  If  the  corporation  adopted  similar  by- 
laws by  parol,  and  by-laws  can  be  proved  by  parol,  then  the 
witness  ought  to  state  in  words  the  contents  of  the  parol  by- 
laws. The  written  by-laws  of  the  association  could  not  be 
read  as  evidence  of  the  parol  by-laws  of  the  corp  »ration.  It 
will  be  noted  that  the  heading  to  by-laws  is  not  in  the  book 
produced,  and  rejected  by  the  court,  as  stated  in  the  exception. 
The  last  question  is  on  the  admissibility  of  the  books.  If 
the  court  below  were  right  in  their  direction  upon  the  plea  of 
non  est  fact  tin,  they  are  then  clearly  right  in  this  opinion. 
For  it  would  be  absurd  to  admit  evidence  to  prove  damages  for 
the  breach  of  the  condition  of  a  bond,  when  the  bond  itself  was 
not  proved — when  there  was  no  contract  to  be  broken,  and  con- 
sequently no  damages  to  be  claimed  for  a  breach.  If,  however, 
the  court  erred  as  regards  the  issue  of  non  est  factum,  yet  it 
is  insisted  that  the  said  books  were  not  admissible  for  the  pur- 
pose for  which  they  were  offered.  1.  The  general  superinten- 
dance  and  direction  of  Higginbothom,  mentioned  in  this  ex- 
ception must,  unquestionably,  be  understood  to  mean,  his  gene> 
VOL.  if  51 


402  CASES  IN  THE  COtJRT  OF  APPEALS 

UMOST  BANK  OF  MAHTLAWD  v.  RIDGELT. — 1827. 

ral  superintendence  and  direction  as  cashier.  There  is  no  evi- 
dence that  he  directed  the  particular  entries,  or  even  saw  them 
or  knew  that  they  were  made.  The  cashier's  duty  of  super- 
intendence is  precisely  like  the  president's,  and  nobody  sup- 
poses that  the  president. is  responsible  by  reason  of  his  super-; 
intenHence,  for  the  false  entries  alleged  to  exist  in  the  books — - 
*ftri.  18,  19.  2.  The  entire  books  were  offered,  and  not  parti- 
cular items,  and  a  part  of  the  entries  in  the  books  were  made 
by  a  witness  still  living.  The  relaxation  of  the  rule  as  to  the 
handwriting  of  an  absent  witness,  it  is  contended,  is  confined  to 
the  single  case  of  an  instrumentary  witness,  and  has  never  been 
carried  farther.  The  books  could  not,  therefore,  be  read  un- 
less the  living  witness  was  called  to  prove  his  entries,  and  for 
the  best  reason — because  he  would  be  able  to  explain  why  they 
were  made.  Cooper  vs  Marsden,  1  Esp.  Rep.  1.  3.  The 
books  were  offered,  not  only  to  show  that  they  contained  false 
entries  and  omissions;  but  also,  to  prove  by  the  books  that  such 
false  entries,  &c.  occurred  therein  by  the  neglect  and  fraud  of 
Uigginbothom.  Now,  although  the  books  might  show  false 
entries  and  mistakes,  they  could  not  show  that  they  occurred 
by  the  fraud  or  neglect  of  Higginbothom;  and  being  offered 
for  a  purpose  for  which  they  were  clearly  incompetent,  they 
were  properly  rejected  by  the  court.  They  could  not,  in  any 
view  of  the  subject,  be  evidence  to  charge  the  defendant,  un- 
less they  were  coupled  with  an  offer  to  prove,  that  the  entries 
spoken  of  were  occasioned  by  his  neglect  of  duty,  or  that  he 
knew  their  falsehood,  and  connived  at  it — >-no  such  proofs  are  of- 
fered; the  books  are  offered  by  themselves,  and  it  is  not  even 
said  that  it  w<is  the  duty  of  Higginbothom  to  inspect  them. 
1  Starkie,  50,  51,  305,  306.  2  Starkie,  41  to  47,  401,  403, 
406.  3  Starkie,  1300,  tit.  Res  inter  alios.  If  the  cashier 
could  have  performed  his  duty,  and  yet  these  false  entries  have 
been  made,  the  court  will  presume  that  he  did  perform  his  duty; 
they  will  not  presume  fraud.  The  case  of  the  Manhattan 
Company  vs  Lydig,  4  Johns.  Rep.  377,  shows  that  when  or- 
dinary and  legal  diligence  was  used  by  the  bank,  still  such  false 
entries  may  occur,  which  might  have  been  prevented  by  extra- 
ordinary diligence.  And  when  it  is  stated,  as  it  is  in  that  case, 
that  the  bank  was  not  bound  to  use  any  extraordinary  diligence 


OF  MARYLAND.  403 


UNION  BANK  OF  MARYLAD  r.  RIDGELT. — 1827. 


to  detect  and  prevent  the  false  entries  of  its  book-keeper,  it  ne- 
cessarily follows  that  the  cashier  was  not  bound,  he  being  the 
principal  officer  of  the  bank,  and  the  bank  being  clearly  re- 
sponsible for  any  omission  of  duty  on  his  part.  It  is,  also,  to 
be  remarked  that  Spencer,  J.  in  delivering  the  opinion  of  the 
court  in  the  above  cited  case,  observed,  that  the  bank  had  pur- 
sued the  usual  and  uniform  method,  and  could  not  be  subjected 
to  the  charge  of  negligence,  which  they  certainly  would  have 
been  had  it  been  the  duty  of  the  cashier  to  exercise  such  ex- 
traordinary diligence  as  would  have  enabled  him  to  discover 
the  false  entries  of  the  book-keeper.  The  truth  is,  and  every 
body,  in  the  slightest  degree  acquainted  with  such  matters, 
knows,  that  the  exercise  of  such  a  degree  of  diligence  on  the 
part  of  the  cashier,  would  be  utterly  incompatible  with  a  faith- 
ful performance  of  the  ordinary  and  important  duties  of  that 
officer.  It  is  scarcely  considered  necessary  to  assign  any  rea- 
sons why  the  books  are  not  admissible,  in  this  case,  as  the 
books  of  a  corporation.  It  will  be  perceived,  by  the  court, 
that  all  the  elementary  writers  on  the  subject,  of  the  most  ap- 
proved authority,  lay  down  the  rule  broadly,  that  the  books  of, 
a  public  corporation  are  only  evidence  as  between  the  members, 
and  not  as  between  the  corporation  and  a  stranger.  ~By  stran- 
ger is  meant  any  one  who  is  not  a  member  of  the  corporation. 
In  the  present  case,  every  one  is  a  stranger  who  is  not  a  stock- 
holder in  the  bank.  The  cashier,  as  such,  is  not  a  member  of 
the  corporation.  He  may  be  a  stockholder,  and  thus  a  member 
of  the  corporation,  and  the  books  might,  for  some  purposes,  be 
evidence  against  him.  But  it  would  be  in  his  character  of 
stockholder,  and  not  in  his  character  as  cashier,  in  which  he  is. 
as  much  a  stranger,  as  to  this  point,  as  if  he  had  never  been 
within  the  walls  of  the  banking  house.  Starkieon  Evidence, 
291  to  300.  Philips,  319.  This  is  a  fortiori,  true  with  re- 
gard to  the  surety  of  the  cashier.  Upon  a  view,  therefore,  of 
the  whole  case,  it  is  submitted  that  the  judgment  of  the  coun- 
ty court,  on  all  the  points,  was  right,  and  ought  to  be  affirmed. 

Curia  adv.  vulf. 


404  CASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK  OF  MARYLAND  v.  UIDGELT. — 1827 

BUCHANAN,  Ch.  J.  at  the  present  term,  delivered  the  opinion 
of  the  court.  At  the  trial  of  this  cause  in  the  court  below,  six 
bills  of  exceptions  were  taken  on  the  part  of  the  plaintiffs,  upon 
which  this  court  is  called  on  to  decide.  The  suit  was  in- 
stituted upon  an  instrument  of  writing,  purporting  to  be  a 
bond,  executed  on  the  30th  of  March,  in  the  year  1805,  to  the 
plaintiffs,  by  Ralph  Higginbothom,  in  the  character  of  cashier 
of  the  institution,  as  principal,  and  the  defendant  and  others, 
as  his  sureties.  The  declaration  is  in  the  usual  form  of  debt 
on  bond.  The  defendant,  among  other  pleas,  pleaded  in  the 
first  instance  general  performance.  The  plaintiff  replied,  as- 
signing various  breaches,  and  several  issues  were  joined,  both 
of  fact  and  in  law,  to  which  it  is  not  necessary  here  to  advert. 
In  this  state  of  the  pleadings,  the  cause  was  continued  by  consent 
from  term  to  term,  with  leave  to,  the  parties  to  amend  their 
pleading^,  until  the  term  at  which  it  was  tried,  when  the  de- 
fendant, by  his  counsel,  asked  leave  of  the  court  to  amend  his 
pleadings,  by  filing  a  special  plea  of  non  est  factum,  which 
was  objected  to  by  the  counsel  for  the  plaintiffs.  But  the  court 
overruled  the  objection,  and  permitted  the  defendant  so  to  amend 
his  pleadings;  which  forms  the  subject  of  the  first  exception. 

The  grounds  of  objection  to  the  plea  being  received  at  that 
stage  of  the  cause,  are — First.  That  it  came  too  late.  Second. 
That  it  is  inconsistent  with  the  defendant's  plea  of  general  per- 
formance, and  other  pleas;  and  Thirdly.  That  it  is  against  the 
eleventh  and  thirty-third  standing  rules  of  that  court. 

As  to  the  first  of  these  grounds,  it  might  be  sufficient  to  ob- 
serve, that  it  is  a  general  issue  plea,  and  like  other  general  issue 
pleas,  need  not  be  pleaded  before  the  rule  day,  but  may  be  re- 
ceived when  the  cause  is  called  up  for  trial,  and  did  not  there- 
fore come  too  late  in  this  case.  In  addition  to  this,  it  is  not  at 
variance  with  the  eleventh  rule  of  the  court,  which  expressly 
provides,  that  "the  general  issue  plea  may  be  pleaded  by  the 
defendant  at  any  time  before  judgment  by  default  is  entered  a- 
gainst  him,  although  he  hath  not  pleaded  before  the  rule  day;" 
and  also  that  "it  will  never  be  considered  as  a  reason  to  delay 
the  trial."  And  by  the  act  of  assembly  of  this  state  of  1809, 
eh.  153,  s.  1,  it  is  declared,  "that  the  courts  of  law  shall  have 
power  to  order  and  allow  amendments  to  be  made  in  all  pro- 


OF  MARYLAND,  405 


UNION  HANK  OF  MARYLAND  v.    RIDGELY  — 1827. 


oecdings  whatever  before  verdict,  so  as  to  bring  the  merits  of 
the  question  between  the  parties  fairly  to  trial;  with  the  further 
provision,  that  "in  all  cases  where  amendments  are  made,   the 
adverse  party  shall  have  time  to  prepare  to  support  his  case; 
but  the  case  shall  not  be  continued  to  the  next  term,  unless  the 
court  shall  be  satisfied  that  the  same  is  necessary."     That  the 
court  then  had  authority  to  permit  the  amendment  objected  to, 
so  far  as  concerns  the  time  at  which  the  plea  was  offered,   is 
unquestionable.      And  the  argument  directed   against  that  au- 
thority, drawn  from  the  supposed  surprise  and  hardship  on  the 
plaintiffs,  would  be  more  applicable  to  an  objection  to  the  forc- 
ing a  plaintiff  in  such  a  case  into  an  immediate  trial,  which   is 
not  presented  by  any  thing  appearing  in  this  record;  the  ques- 
tion arising  on  this  bill  of  exception,  not  being  whether  the 
plaintiffs  were  improperly  forced  into  the  trial  of  the  cause  at 
that  time,  but  whether  the  plea  was   properly  received.     Be- 
sides, under  the  llth  rule  referred  to  of  the  court,   the  filing  a 
general  issue  plea,  when  a  cause  is  called  up  for  trial,   is  not  of 
itself  a  cause  of  continuance.     And  although  by  the  act  of  1809. 
ch.  153,  when  an  amendment  is  made  at  the  trial,  time  is  to  be 
given,  during  the  term,  to  the  adverse  party  to  prepare  to  sup- 
port his  case;  yet  the  cause  is  not  therefore   to   be  continued, 
unless  the  court  shall  be  satisfied  that  a  continuance  is  necessa- 
ry.    And  there  is  nothing  to  show,   either  that  a  continuance 
of  the  cause,  or  time  to  prepare  to  support  their  case,  was  asked 
for  in  behalf  of  the  plaintiffs,  and  refused  by  the  court,  or  that 
they  were  forced  into  an  immediate  trial  unprepared;   on  the 
contrary,  the  record  exhibits  an  objection  only  to  the  plea  be- 
ing received,  and  that,  on  the  three  grounds  stated   in   the  bill 
of  exceptions,  that  it  came  too  late,  was  inconsistent  with  the 
defendant's  other  pleas,  and  against  the  llth  and  33d  rules  of 
the  court.      Moreover,  the  cause  appears  to  have  been  continu- 
ed from  term  to  term  for  several  terms,  to  that  at  which  it  was 
tried,  not  under  a  rule  on  either  party,  but  by  consent,    with 
leave  generally  to  the  parties  to  amend  their  pleadings;  so  that 
in  receiving  the  plea,  there  was  no  surprise  or  hardship  on  the 
plaintiffs  to  be  complained  of. 

But  if  it  rendered  a  continuance  of  the  cause,  or  further  time 
to  the  plaintiffs  during^  the  term,  for  preparation,  necessary, 


406      CASES  IN  THE  COURT  OF  APPEALS 

i 


UNION  BANK  OF  MARYLAND  v.  RIDGELT. — 1827- 

which  continuance  or  time  was  an  application  refused  by  the 
.court,  an  objection  would  more  properly  have  laid  to  such  refusal. 

The  second  ground  of  objection.  The  incompatibility  of  the 
pleas  of  general  performance  and  non  est  factum,  is  equally 
untenable.  Whatever  apparent  inconsistency  there  may  be 
between  such  pleas,  it  is  not  of  a  character  to  prevent  their  being 
received;  and  such  has  been  the  practice  of  permitting  them, 
under  the  construction  of  the  statute,  4  Jinn,  ch.  16,  that  it 
may  now  be  considered  a  settled  rule  or  law  of  pleading. 

To  confine  the  defendants  to  pleas  strictly  consistent,  would 
be  greatly  to  narrow  the  benefit  of  the  statute;  as  a  special,  and 
a  general'  issue  plea,  could  in  such  case,  seldom,  if  ever,  be 
pleaded,  the  latter  always  denying,  arid  the  former  generally 
confessing  and  avoiding  the  charge.  And  as  the  statute  itself 
makes  no  such  distinction,  it  is  not  by  construction  limited  to 
strictly  consistent  pleas;  but  the  chance  is  given  to  the  defen- 
dant of  succeeding,  not  only  on  the  strength  of  his  own  case, 
but  on  the  weakness  also  of  the  plaintiffs,  by  permitting  ap- 
parently incompatible  pleas  to  be  pleaded — as  not  guilty,  and 
accord  and  satisfaction;  not  guilty,  and  son  assault  demesne; 
not  guilty,  or  non  asstimpsit,  and  the  statute  of  limitations; 
non  est  factum  and  payment;  non  est  factum  and  general 
performance,  &c.  Hence  the  common  form  of  pleading  such 
pleas,  to  be  found  in  the  most  approved  books  of  entries,  and 
the  many  cases  in  the  books  of  reports  in  which  they  have  been 
received.  Of  which  the  case  similar  to  this  in  Wright  ^s Rus- 
sell, 3  Wils.  536,  may  be  taken  as  an  apposite  example;  where 
after  the  pleas  of  non  est  factum  and  performance,  judgment 
was  given  for  the  defendant  on  his  demurrer  to  the  plaintiff's 
replication. 

Non  assumpsif,  or  non  est  factum,  and  a  tender,  are  not 
permitted  to  be  pleaded,  on  the  ground,  that  one  goes  to  deny 
the  existence  of  any  cause  of  action,  and  the  other  admits  it; 
and  that  if  the  general  issue  should  be  found  for  the  defendant, 
it  would  appear  on  the  record  in  the  action  of  assnmpsit.  that 
no  debt  was  due,  in  the  face  of  the  defendant's  admission  by 
the  plea  of  tender,  that  something  was  due;  arid  in  the  action  of 
debt,  that  there  never  existed  such  a  bond  as  rhnt  declared  on, 
when  the  plea  of  tender  admits  something  to  be  due  on  that 


OF  MARYLAND.  407 


UNION    BANK  OF   MARTLANIT  r.  KIIXJELT. — 1827. 


very  bond.  Maclellanvs  Howard,  4  T.  R.  194.  Jenkins  vs 
Jjdwards,  5  T.  R.  97.  But  the  pleas  of  general  performance 
and  non  est  facluni,  though  apparently .  inconsistent,  cannot 
produce  on  the  record  the  same  incongruity,  both  going  to  deny 
the  plaintiff's  whole  cause  of  action.  And  the  general  issue 
and  a  tender,  are  the  only  pleas  that  are  now  disallowed  on  the. 
mere  ground  of  inconsistency^  (I  Chitty's  Plead.  541,  542. 
Step,  on  Plead  293,459;)  unless  it  be  by  the  33d  rule  of  the. 
court,  that  seems  to  have  been  relied  upon,  declaring  "that  no 
incompatible  pleas  shall  be  received;"  but  which  is  certainly  at 
variance  with  the  well  established  practice  on  the  subject  of 
pleading,  and  inconsistent  with  that  due  exercise  of  discretion, 
which  is  required  of  the  courts  of  this  state  by  the  act  of  1809, 
ch.  153,  giving  them  power  "to  order  and  allow  amendments 
to  be  made  in  all  proceedings  whatever  before  verdict,  so  as  to 
bring  the  merits  of  the  question  between  the  parties  fairly  to 
trial;"  since  under  that  rule  (if  of  binding  authority,)  a  plea 
necessary  to  the  bringing  the  merits  of  the  question  between 
the  parties  fairly  to  trial  might  be  excluded. 

The  discretion  vested  in  the  courts  by  that  act,  is  not  a  ca- 
pricious, but  a  sound  legal  discretion,  to  the  proper  exercise  of 
which  the  party  claiming  it  is  entitled,  and  from  which  he  can- 
not properly  be  debarred,  by  any  rule  that  is  the  mere  creature 
of  the  court;  and  the  permitting  the  amendment  proposed  in  this 
case  to  be  made,  was,  we  think,  a  proper  exercise  of  that  dis- 
cretion, according  to  the  spirit  and  intention  of  the  acts,  and  the 
settled  practice,  in  relation  to  the  pleading  a  special  and  gene- 
ral issue  plea,  although  apparently  inconsistent,  notwithstand- 
ing the  33d  rule,  which  was  properly  dispensed  with. 

The  questions  presented  by  the  second  and  third  bills  of  ex- 
ceptions taken  by  the  plaintiffs,  arise  on  points  of  evidence.. 
The  first  as  to  the  competency  of  a  witness  produced  on  the 
part  of  the  plaintiffs;  and  the  second  on  the  admissibility  of  a 
writing,  headed  "By-Laws,"  which  was  offered  to  be  read 
on  the  part  of  the  plaintiffs,  as  and  for  the  by-laws  of  the  cor- 
poration, under  which  the  president  and  directors  acted,  and 
as  prescribing,  among  other  things,  the  duties  of  Ralph  Hig~ 
ginbothom  (the  principal  in  the  bond,)  while  he  was  in  their 
employment  as  cashier.  Henry  Payson,  the  persoa  produced 


408  CASBS  IN  THE  COURT  OF  APPEALS 

UXION  BANK  or  MARYLAND  v.   RIDGELT. — 1827. 

as  a  witness,  being  proved  to  be  a  stockholder  in  the  bank  at 
the  time  of  the  trial,  his  testimony  was  objected  to,  for  any 
purpose  but  to  prove  himself  a  stockholder;  and  rejected  by  the 
court  on  the  ground  of  interest. 

It  is  admitted,  upon  general  principles  of  evidence,  that  in  a 
suit  brought  by  a  bank,  one  who  is  a  stockholder,  and  interested 
in  the  event  of  the  suit,  is  not  a  competent  witness  in  behalf  of 
the  institution.  But  that  general  rule  is  not  without'cxception; 
for  though  an  interested  corporator  cannot  be  received  to  testi- 
fy generally  for  the  corporation,  yet  it  does  not  therefore  fol- 
low, that  he  is  competent  for  no  purpose;  but  he  may  be  placed 
in  a  situation  to  render  him  a  necessary  and  competent  witness 
for  some  purposes.  Of  which  the  case  of  The  King  vs  The  In- 
habitants of  the  township  of  Net  her  thong,  2  Maul.  <§.*  Selw. 
337,  is  an  appropriate  example,  where  a  rated  inhabitant  of  the 
township  of  Net  her  thong,  whose  interest  was  admitted,  was 
called  by  the  respondents,  and  was  held  to  be  competent  to 
give  evidence  as  to  the  custody  of  a  certificate  from  the  town- 
ship of  Honley,  (which  was  produced,)  acknowledging  the 
pauper's  grandfather  and  father  to  belong  to  Hartley,  in  accord- 
ance with  the  decision  in  another  case,  that  was  mentioned  by 
Lord  Ellenborough. 

Pay  son  being  a  stockholder  in  the  bank,  was  not  a  compe- 
tent witness  for  the  plaintiffs  for  all  purposes;  but  he  was  offer- 
ed to  prove,  among  other  things,  that  he  was  the  president  of 
the  bank  from  the  27th  of  April  1812,  until  after  the  27th  of 
May  1819;  that  as  such,  he  was  the  depositary  of  the  bank; 
and  that  during  the  time  he  was  president,  a  certain  book  called 
the  By-Laws,  was  one  of  the  books  of  the  bank.  And  if  an  in- 
terested corporator  is  competent  to  give  evidence  in  behalf  of 
the  corporation,  as  a  depositary  of  the  muniments,  in  relation 
to  his  custody,  of  a  paper  produced  as  one  of  the  muniments,  why- 
was  not  Pay  son  within  the  exception  to  the  general  rule,  and 
competent  to  prove  himself  the  depositary  of  the  book  called 
the  By-Laws,  aj  a  muniment  of  the  bank?  The  only  argument 
urged  against  his  competency,  as  being  within  the  exception  is, 
that  at  the  time  he  was  called  as  a  witness,  he  appears  from  the 
plaintiffs'  own  offering  to  have  ceased  to  be  the  depositary. 
But  that,  it  is  conceived,  makes  no  difference,  and  that  he  was 


OF  MARYLAND.  409 


UNION  BANK  OF   MARILAMD'  v.   RIDGELY  — 1827. 

a  competent  witness  to  identify  the  book  as  a  muniment  of  the 
bank,  during  the  time  that  he  was  the  despositary,  Higgin- 
bothom,  too,  then  acting  as  the  cashier,  and  being  a  witness  for 
that  purpose,  that  he  ought  not  to  have  been  rejected  as  incom- 
petent to  prove  any  of  -the  matters  for  which  he  was,  offered. 

He  was  not  competent  to  prove  that  it  continued  to  be  one 
of  the  books  of  th«  bank,  after  he  had  ceased  to  be  the  deposita- 
ry, and  when  he  stood  only  in  the  relation  of  a  stockholder  in 
the  bank,  any  more  than  any  other  stockholder.  But  admitting 
the  existence  as  to  depositaries,  of  the  exception  to  the  general 
rule  of  evidence,  no  reason  is  perceived,  why  his  having  ceased 
to  he  the  depositary  at  the  time  he  was  called  as  a  witness,  dis- 
qualified him  from  proving  the  book  produced  to  have  been  a 
muniment  of  the  bank,  while  he  was  the  depositary;  the  nature 
of  his  interest  as  a  stockholder  not  being  changed,  but  remain- 
Ing  the  same  as  it  was,  while  he  continued  to  be  the  depositary. 

The  objection  to  the  admissibility  of  the  writing  headed  "By- 
Laws,"  is,  that  they  purport,  upon  the  face  of  them,  to  have 
been  the  by-laws. of  the  banking  association,  styled  "  The  Presi- 
dent and  Directors  of  I  he  Union  Bank  of  Maryland"  when 
the  business  was  transacted  under  the  articles  of  association, 
and  before  the  act  of  incorporation,  and  that  they  do  not  suf- 
ficiently appear  to  have  been  adopted  by  the  corporation  as 
their  by-laws." 

By  the  ninth  section  of  the  charter  the  president  and  direc- 
tors, for  the  time  being,  are  authorised  to  make  all  such  rules, 
orders,  by-laws  and  regulations,  for  the  government  of  the  cor- 
poration, its  officers  and  servants,  as  they,  or  a  majority  of 
them,  from  time  to  time  may  think  fit,  and  the  same  at  plea- 
sure to  revise,  alter  and  annul.  It  may  here  be  admitted,  that 
the  charter  contemplates  written  by-laws;  and  then  the  ques- 
tion is,  whether  these  are  the  written  by-laws  of  the  corpora- 
tion? 

They  are  in  writing,  and  if  they  were  ever  adopted  by  the 
president  and  directors,  or  a  majority  of  them,  as  by-laws  for 
the  government  of  the  corporation  and  its  officers,  they  became, 
by  such  adoption,  the  written  by-laws  of  the  corporation.  It 
appears  from  the  statement  of  the  evidence,  that  the  book  mark- 
ed By- Laws,  from  which  the  writing  objected  to  was  offered  to 
YO.L.  j>  52 


410       CASES  IN  THE  COURT  OF  APPEALS 

.  » — ; : —  '  " 

UNION  BAVK  UF  MARILAND  v.  RIDGKLY. — 1827. 

be  read,  was  one  of  the  books  of  the  corporation,  and  that,  in 
which  the  proceedings  of  the  president  and' directors  were  en- 
tered, from  the  time  the  charter  was  obtained,  until  the  year 
1819,  so  far  as  they  were  reduced  to  writing,  and  that  there 
was  no  other  "book,  in  which  their  proceedings  were  entered 
during  that  period,  nor  any  other  writing  or  memorandum  of 
their  proceedings.  One  of  the  witnesses,  the  cashier  who  suc- 
ceeded Higgiiibofhom,  in  the  year  1819,  and  after  other  by- 
laws had  been  adopted,  proves,  that  when  he  went  into  the 
bank,  he  found  the  same  book  among  the  other  books  of  the 
corporation,  and  that  it  had  in  bank  the  reputation  of  being  the 
former  by-laws  and  minutes  of  the  corporation.  If  then  there 
were  any  by-laws  of  the  corporation,  they  were  contained  iu 
that  book,  and  were  they  that  were  offered  to  be  read,  and  were 
rejected  by  the  court — there  were  none  other. 

It  is  contended,  Isf.  That  there  is  no  evidence  that  the  en- 
tire writing,  headed  "Bv-Laws,"  was  adopted  as  the  by-laws 
of  the  corporation.  And  2d.  That  there  does  not  appear  to 
have  been  any  entry  or  memorandum  of  such  adoption,  among 
the  minutes  of  the  proceedings  of  the  corporation. 

As  to  the  first  of  these  positions.  The  writing,  headed  "By- 
Laws/'  consists  of  26  articles,  the  witnesses  who  were  examin- 
ed in  relation  to  their  adoption,  had  each  of  them  been  a  direc- 
tor under  the  charter,  except  txvo  who  had  been  clerks;  and 
the  proof  is,  that  the  19th  article  prescribing  the  duties  of  the 
cashier,  which,  in  truth,  is  all  that  is  material  in  this  part  of 
the  case,  was  required  by  the  corporation  to  be  particularly  ob- 
served; and  that  Higginbothom,  acting  as  the  cashier,  after 
the  act  of  incorporation,  was  in  the  habit  of  observing, or  of  pro- 
fessing to  observe  it,  but  that  he  did  nor  perform  the  duties 
with  regularity.  With  regard  to  the  rest,  several  of  the  wit- 
nesses, taking  their  testimony  together  prove,  that  the  govern- 
ment and  proceedings  of  the  bank  were  in  conformity  with  all 
of  them,  with  the  exception  only  of  the  20th  and  23d,  concern- 
ing which  they  have  no  distinct  recollection,  and  which  have 
po  relation  to  the  duties  of  the  cashier;  some,  that  the  direction 
and  government  of  the  bank  was  in  general  in  conformity  with 
them;  one,  that  when  he  was  elected  a  director,  in  1817  or 
1818,  he  inquired  for  the  by-laws,  and  that  a  book  or  paper 


OF  MARYLAND.  411 


BA*K  OF  MARYLAND  r.  RIDGELT.  —  1827. 


was  delivered  to  him  by  an  officer  of  the  bank,  containing  by-- 
laws similar  to  those  in  question;  that  he  remembers  them, 
among  other  things,  from  the  fact,  that  questions  sometimes 
arose  at  the  board,  as  to  what  were  the  rules  in  particular  cases, 
which  were  decided  agreeably  to  the  by-laws  offered  to  be  read  ; 
and  because  the  regulations  and  government  of  the  bank  cor- 
responded, while  he  was  a  director,  and  until  other  by-law* 
were  adopted  in  1819,  with  the  system  prescribed  by  the  arti- 
cles, headed  "By-laws."  And  another,  that  when  he  was 
sworn  in  as  a  director,  between  the  years  1806  and  1811,  or 
about  that  time,  certain  by-laws  were  handed'  to  him,  as  proper 
to  be  read  by  him  as  a  director;,  but  does  not  prove  that  these 
are  or  are  not  the  same;  and  it  appears  that  all  the  articles,  head- 
ed "By-Laws,"  and  many  of  the  minutes  entered  in  the  book, 
entitled,  "By-Laws,"  which  was  kept  by  Higginbothom,  as 
cashier,  were  in  his  handwriting.  This  is  the  substance  of  the 
material  part  of  the  oral  testimony  stated  in  the  third  bill  of 
exceptions,  and  it  seems  to  us  to  be  quite  sufficient  to  show  a 
practical  adoption  by  the  corporation  of  the  articles,  headed 
"By  -Laws." 

As  the  book,  in  which  they  are  written,  was  one  of  the 
books  oi  the   corporation,  and  the  only  book  in  which  any   of 
the  proceedings  of  the  president  and  directors  were   entered, 
from  the  time  the   charter  was  obtained   until   1819,   and  as- 
there  was  no  other  writing  or  memorandum  of  their  proceed- 
ings, it  was  necessarily  the  book  that  was  put  into  the  hands 
of  the  two  witnesses,  when  they  first  went  into  the  bank  as  di- 
rectors.  And  what  circumstance  could  be  stronger  to  show,  that 
the  writing  or  articles,  headed   "By-Laws,"  had   before   been 
adopted  by  the  corporation  as  such,  than  the  delivery  of  the 
book  containing  them,  by  one  of  its  officers,  to  a  newly  appoint- 
ed director,  on  his  inquiring  for  the  by-laws,  and  their  being 
handed  to  another,  on  the  occasion  of  his  berng  >worn  in,  as 
proper  to  be  read  by  him  as  a  new  director?     The  testimony 
of  each  of  those  witnesses  goes  to  the  whole  writing,   and   not 
to  any  particular  article.     It  was  put  into  their  hands  to  read, 
as  containing  a  system  of  by-laws,  not  confine.  i  to  one  portion 
more  than  another,  but  embracing  all  the  articles  of  which  it 
consists.     And  although  they  do  not  identify  the  writing  pro- 


412  CASES  IN  THE  COURT  OF  APPEALS 

UNION  HANK  OF  MARTLAND  y.  HIURKLT. — 1827. 

duced,  by  swearing  it  is  the  same  which  they  saw  in  the  bank, 
and  of  which  they  speak;  yet  its  identity  is  sufficiently  establish- 
ed by  the  proof,  that  the  book  containing  it  was  a  book  of  the 
corporation,  in  which  the  proceedings  of  the  president  and  di- 
rectors were  entered  until  the  year  1819,  and  that  there  -was  no 
other  in  which  any  of  their  proceedings  were  entered,  nor  any 
other  writing  or  memorandum  of  their  proceedings  before  that 
period.  The  testimony  then  of  these  witnesses,  clearly  relates 
to  the  articles  headed  "By-Laws,"  and  evinces  the  understand- 
ing at  the  bank  upon  the  subject,  and  the  light  in  which  they 
were  viewed.  And  the  proof  by  some  of  the  witnesses,  that 
the  direction  and  government  of  the  bank  was  generally  in  con- 
formity with  the  system  they  presribe;  by  one,  that  the  regu- 
lations and  government  of  the  bank,  corresponded  with  them  as 
a  system,  and  that  they  governed  the  decision  of  questions, 
which  occasionally  arose  as  to  what  were  the  rules  in  particular 
cases;  by  some  that  the  proceedings  and  government  of  the 
bank  were  in  conformity  with  24  of  the  26  articles,  particular- 
ly in  the  recollection  of  the  witnesses;  and  by  some,  that  the 
19th  article  was  required  by  the  corporation  to  be  particularly 
observed,  and  that  Higginbothom  himself,  acting  »s  the  cashier, 
professed  to  observe  it,  form  together  a  mass  of  evidence  rela- 
tive to  the  acts  and  general  government  of  the  corporation,  con- 
clusive of  their  adoption  as  a  system,  and  not  of  particular  arti- 
cles merely,  if  they  could  be  adopted  otherwise  than  by  writ- 
ing. They  were  treated  and  acted  upon  as  a  system,  and  there 
is  nothing  to  show  that  they  were  partially  adopted  only,  or 
that  any  particular  articles  of  that  general  system  were  except- 
ed. 

But  it  is  supposed,  secondly,  That  an  entry  or  memorandum 
in  writing  was  necessary  to  their  adoption  by  the  corporation. 
INo  reason  has  been  shown  in  .argument,  nor  can  we  perceive 
any,  why  their  adoption  may  not  be  proved,  as  well  by  the  acts 
and  uniform  course  of  proceeding  of  the  corporation,  as  by  an 
entry  or  memorandum  in  writing.  They  were  originally  the 
by-laws  of  an  association,  and  an  entry  or  memorandum  would 
have  been  evidence  only  as  an  act  of  the  corporation  of  their 
adoption;  and,  without  the  common  seal,  which  was  once  held 
to  be  necessary  to  every  act  of  a  corporation  aggregate,  could 


OF  MARYLAND.  413 

UNION  BANK  OF    MARYLAND  t>.  UIDGELT. — 1827. 
\ 

no  more  unite  the  several  assents  of  the  individuals  composing 
it,  so  as  to  make  it  the  act  of  the  corporation,  than  any  other 
act  without  the  common  seal. 

But  it  is  admitted,  that  a  corporation  aggregate  may  nmv  act 
without  its  common  seal;  and  if  so,  why  may  not  the  adoption 
by  such  a  corporation,  of  a  set  of  written  rules,  (already  pre- 
pared by  others,)  as  and  for  its  by-laws,  be  evidence  otherwise 
than  by  writing?  Where  is  the  law  substituting  writing  for  the 
common  seal,  and  declaring  it  to  be  necessary  in  all  cases?  If 
there  is  any  act  of  a  corporation  that  need  not  be  in  writing,  it 
would  seem  to  be  such  an  act  of  adoption;  not  being  a  con- 
tract, but  a  recognition  only,  of  certain  written  rules  for  its  own 
government,  and"  that  of  its  officers  and  servants,  which,  when 
adopted,  whether  by  writing  or  otherwise,  become  its  written 
by-laws,  speaking  the  sense  of  the  corporation;  and  it  does  not 
appear  to  be  material,  in  what  manner,  or  by  what  acts,  its  as- 
sent to  them  is  manifested,  assuming  that  it  need  not  be  evi- 
denced by  the  common  seal. 

In  this  case  authority  to  make  by-laws  is  specially  delegated 
by  the  charter  to  the  president  and  directors,  without  any  di- 
rection as  to  the  manner  in  which  it  is  to  be  done.  And  if  in 
the  exercise  of  that  authority,  as  the  agents  (under  the  char- 
terj)  of  the  corporation,  they  could  adopt  as  rules  for  its  go- 
vernment, the  written  by-laws  of  the  former  associations,  which 
is  not  denied,  it  was  no  more  necessary  to  be  done  in  writing, 
than  the  acts  of  any  other  duly  appointed  and  authorised  agents. 
And  it  will  not  be  contended,  that  an  agent,  duly  authorised 
and  appointed  by  a  corporation,  can  only  act  or  contract  by 
writing. 

But  authorities  are  not  wanting  to  sustain  the  position,  that 
acts  or  contracts  of  corporations  may  be  proved  otherwise  than 
by  writing,  and  may  be  inferred  from  other  corporate  acts;  two 
only  of  which  will  now  be  noticed,  which  are  we  think  con- 
clusive upon  this  point  of  the  case.  The  Bank  of  Columbia 
vs  Patterson's  Jjdm'rs.  1  Crar/ch,  299,  and  Whittington  vs 
The  Farmers  Bank  of  Somerset  and  Worcester,  5  IJarr.  ty 
Johns.  489.  The  Bank  oj  Columbia  vs  Patterson's  Jldm'rtf 
was  an  action  of  assumpsit,  by  Patterson's  administrators,  for 
work  and  labour  done  by  their  intestate,  for  the  bank,  growing 


414  CASES  IX  THE  COURT  OF  APPEALS 

UNION  BA.VK  OF  MARYLAND  v.    KIIIKKI.Y  — 1827. 

out  of  a  sealed  agreement  between  Patterson,  and  an  authorised 
committee  of  the  directors  of  the  bank,  in  their  own  names. 
There  was  no  entry  or  memorandum  in  writing  produced,  of 
the  adoption  by  the  corporation  of  the  contracts  of  the  com- 
mittee, nor  of  any  vote  for  the  payment  of  the  money.  But 
it  appearing  that  the  corporation  had  from  time  to  time  paid 
money  on  the  contracts  to  the  intestate,  and  that  they  were  for 
the  benefit  of  the  corporation,  the  court  said  the  jury  might 
from  that  evidence  "legally  infer,  that  the  corporation  had 
adopted  the  contracts  of  the  committee,  and  voted  to  pay  the 
whole  sum  which  should  become  due  under  the  contracts,  and 
that  the  plaintiff's  intestate  had  accepted  the  engagement." 
And  in  Whitiington  r.s  The  farmers  Bank  of  Somerset  and 
Worcester,  it  was  decided  by  Worcester  county  court,  and  on 
appeal  affirmed  by  this  court,  that  it  was  not  necessary  an  or- 
der of  the  president  and  directors  should  be  in  writing  to  give 
it  validity,  but  that  it  might  be  proved,  if  not  reduced  to  writ- 
ing, by  oral  testimony. 

But  the  proof  in  this  case  of  the  adoption  by  the  corporation 
of  the  writing  produced,  as  its  by-laws,  does  not  rest  entirely 
on  oral  testimony.  There  is  among  the  minutes  of  the  pro- 
ceedings, which  were  produced,  a  written  recognition  of  them 
in  these  words:  "Whereas  by  an  act  to  incorporate  the  stock- 
holders in  the  Union  Bank  of  Maryland,  it  is  among  other 
things  enacted,  that  an  election  for  sixteen  directors  to  conduct 
the  affairs  of  said  bank,,  shall  be  annually  held  on  the  first  Mon- 
day in  July:  And  whereas  the  said  first  Monday  in  July  may 
sometimes  fall  on  the  fourth  of  said  month,  on  which  the  hank 
will  be  shut  agreeably  to  the  provisions  of  the  fourth  article  of 
the  by-laws,  ordained  and  passed  for  the  regulation  and  govern- 
ment of  the  said  corporation,"  &c.  Now  that  this  entry  re- 
lates to  the  writing  or  articles  headed  "By-Laws,"  and  could 
have  related  to  nothing  else,  is  manifest,  not  only  from  ivhat 
has  been  already  saiil,  and  the  proof  that  there  were  no  others, 
but  also  from  the  language  of  the  fourth  article  itself  under  that 
heading;  which  is  in  these  words:  "That  the  bank  shall  keep 
open  for  ordinary  business,  trom  nine  o'clock  in  the  mo .-ning 
till  three  o'clock  P.  M.  every  day,  ox  rr-t  S  ;n<iays,  thru-  mas 
llay,  and  the  fourth  day  of  J.uly;"  providing,  as  stated  in  the 


OP  MARYLASU.  415 


UNION    MASK   OF    MAIIYLANII  r.  KiiHJELir. — 1827. 


entry,  for  the  bank  being  shut  on  the  fourth  of  July.  It  is  not 
indeed  a  resolution  of  adoption,  nor  the'  act  by  which  they 
were  adopted  and  made  the  by-laws  of  the  corporation,  but  au 
acknowledgment  that  they  had  been  previously  adopted  and 
made,  and  were  then  the  by-laws  of  the  corporation^  It  will 
bear  no  other  construction,  and  it  may  be  likened  to  the  case  of 
Fleckner  vs  The  United  States'  Bank,  S  IVheat.  338,  where  a 
resolution  passed  by  the  president  and  directors  of  the  Plan- 
ters Bank  of  New-Orleans^  declaring  that  an  endorsement 
which  had  before  been  made  of  a  note  by  its  cashier,  was  made 
by  the  authority  of  the  president  and  directors,  and  ratifying 
the  act  of  the  cashier,  was  held  to  be  not  a  mere  ratification  of 
the  transfer,  but  a  binding  acknowledgment  of  its  original  va- 
lidity. As  here,  the  subsequent  entry  is  an  acknowledgment 
of  a  previous  adoption,  not  of  a  part  only,  but  of  the  whole 
writing  as  a  system  of  by-laws,  which  are  declared  to  have  been 
ordained  and  passed,  for  the  government  and  regulation  of  the 
corporation.  Besides  they  are  set  out  in  the  replication,  and 
alleged  to  be  the  by-laws  of  the  corporation,  and  violations  of 
them,  so  far  as  they  prescribe  the  duties  of  the  cashier,  are  as- 
signed as  breaches;  on  which  breaches  issues  are  tendered  by 
the  defendant,  and  joined  by  the  plaintiffs;  so  that  they  are  vir- 
tually admitted  by  the  defe'ndant  in  his  pleadings. 

Two  questions  arise  on  the  fourth  and  fifth  bills  of  excep- 
tions, growing  out  of  the  special  plea  of  non  est  facttim.  1st, 
Whether,  there  being  no  written  acceptance  produced,  of  the 
instrument  on  which  the  suit  was  brought,  there  was  other  suf- 
ficient legal  evidence,  from  which  the  jury  might  have  inferred 
that  it  was  duly  delivered  by  the  defendant,  and  accepted  by 
the  plaintiffs;  which  is  presented,  both  by  the  fourth  bill  ot' 
exceptions,  and  the  first  prayer  of  the  plaintiffs  in  the  fifth 
bill  of  exceptions.  The  2d.  Whether  the  plea,  that  the  sup- 
posed writing  obligatory  was  delivered  as  an  escrow,  imposed 
upon  the  defendant  the  burden  of  proving  the  special  matter 
alleged  in  the  plea;  which  arises  on  the. second  prayer  of  the 
plaintiffs  in  the  fifth  bill  of  exceptions,  and  will  be  first  exa- 
mined. 

It  is  a  general  principle  of  pleading,  that  where  a  plea  pro- 
duce^ a  direct  affirmative  and  negative,  by  denying  Ui€  ailega- 


•416  CASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK  OF  MARYLAND  v.  RIDGELY. — 1827. 

lion  in  the  declaration,  it  should  conclude  to  the  country,  whe- 
ther the  affirmative  of  the  issue  is  held  by  plaintiff  or  defen- 
dant, and  that  the  proof  of  the  affirmative  rests  on  him  who  as- 
serts it.  But  when  new  matter  is  introduced  on  either  side, 
the  pleading  ought  to  conclude  with  a  verification.  Thus,  in 
the  application  of  these  rules,  the  plea  of  general  non.est  fac- 
tum  in  an  action  of  debt  on  a  bond,  which,  by  denying  the  al- 
legation in  the  declaration  that  it  is  the  writing  obligatory  of 
the  defendant,  makes  the  issue  between  the  parties,  concludes 
to  the  country,  and  throws  the  whole  proof  of  the  execution  of 
the  bond,  including  the  delivery,  upon  the  plaintiff,  who  in  that 
case  asserts  the  affirmative. 

But  the  defendant  may,  under  that  issue,  give  in  evidence 
any  thing  which  goes  to  show  that  the  instrument  of  writing 
was  originally  void  at  common  law,  as  lunacy,  fraud,  coverture, 
&c.  or  that  it  had  become  void  subsequent  to  the  execution,  and 
before  the  bringing  of  the  suit,  as  by  erasure,  alteration,  &c. 
because  the  plea  of  nou  est  factiim  puts  in  issue  as  well  its 
continuance  as  a  deed,  as  its -execution;  and  it  is  enough  if  it 
was  not  his  deed  at  the  time  of  pleading.  Or  the  defendant 
may  plead  any  such  special  matter.  But  if  he  chooses  to  do 
so,  being  new  matter,  he  must  do  it  with  a  verification,  and 
holding  the  affirmative,  he  draws  the  burden  of  proof  upon 
himself.  So  if  he  seeks  to  avoid  the  bond,  for  duress,  infancy, 
usury,  &c.  which  cannot  be  given  in  evidence  under  the  gene- 
ral issue,  (the.  bond  not  being  therefore  absolutely  void,  but 
voidable  only,)  he  must  plead  such  new  special  matter  with  a 
verification,  and  the  proof  lies  upon  him.  In  every  such  case 
the  issue  is  upon  the  matter  specially  alleged  in  the  plea. 

That  the  defendant  may  give  in  evidence,  under  the  plea  of 
general  non  est  factum,  that  the  instrument  of  writing  was 
delivered  as  an  escrow  on  a  condition  not  performed,  is  every 
where  to  be  found;  and  it  is  equally  will  settled,  that  he  may 
plead  it  specially,  and  that  the  proper  conclusion  to  that  plea  is 
to  the  country;  because  it  is  a  special  negative  to  the  affirma- 
tive in  the  declaration — the  allegation  in  the  declaration,  that 
it  is  the  writing  obligatory  of  the  defendant,  including  the  alle- 
gation of  the  delivery  of  it  as  a  deed;  and  it  is  this  conclusion 


OF  MARYLAND.  41T 


Union  DANK  OF  MARYLAND  v.  KIDGEI.T. — 1827 


to  the  country  that  raises  the  question,  whether  the  proof  is  on 
the  plaintiff  or  defendant 

In  Bushell  vs  Pasmore,  6  Modern,'  218,  it  is  said  by  Holt, 
Ch.  Justice,  that  *fall  these  special  non  est  factums  in  case  of 
escrow,  erasure,  &c.  are  impertinent,  for  thereby  the  defendant 
brings  all  the  proof  upon  himself;  whereas  by  pleading  non  est 
factum  generally,  he  would  turn  the  proof,  of  whatever  is  ne- 
cessary to  make  it  his  deed,  upon  the  plaintiff;"  thus  making 
no  distinction  between  the  different  pleas  of  special  non  est 
factum  as  to  the  burden  of  proof.  And  in  2  Stark.  Evid.  482, 
the  same  broad  position  is  laid  down,  that  "where  the  plea  is 
non  est  factum  generally,  the  proof  is  upon  the  plaintiff;  but 
where  the  plea  shows  that  the  deed  is  void  for  special  matter, 
the  issue  is  on  the  defendant,"  with  a  reference  to  the  case  of 
Bushell  vs  Pasmore.  This  writer  then,  adopts  as  a  rule  of 
evidence,  ther  doctrine  asserted  in  Bushell  vs  Pasmore,  that  in 
all  cases  ef  special  pleas  of  non  est  factum t  without  any  dis- 
tinction, as  per  fraud,  lunacy,  delivery  as  an  escrow,  erasure, 
&c.  the  proof  rests  on  the  defendant. 

The  position  laid  down  by  Holt  in  Bushell  vs  Pasmore,  is 
translated  into  5  Bac.  M.  373,  with  a  marginal  quere,as  to  the 
ease  of  an  escrow.  We  have  seen  it  no  where  denied;  and  the 
force  of  that  quere,\s  much  weakened  by  the  reason  there  given 
for  it,  "for  it  is  his  deed  though  delivered  to  another  on  condi- 
tion." Now  in  such  case,  the  instrument  is  not  delivered  as  a 
deed  on  condition,  but  given  to  another  as  an  escrow,  to  be  by 
him  delivered  as  a  deed  to  the  obligee,  on  a  condition  prece- 
dent. And  it  is  only  on  the  ground,  that  it  is  not  his  deed,  - 
that  the  defendant  can  give  it  in  evidence  under  the  plea  of 
general  non  est  factum.  The  plea  of  escrow  admits  tho 
signing  and  sealing  only,  but  denies  the  delivery  as  a  deed, 
which  makes  an  issue  between  the  parties;  and  the  conclu- 
sion being  properly  to  the  country,  the  plaintiff  has  no  choice 
but  to  add  the  similiter;  and  the  conclusion,  &c.  "and  so,"  &c. 
being  a  conclusion  of  law,  and  not  issuable,  the  issue  is  upoi\ 
the  whole  plea;  and  the  question  for  the  jury  is  a  question  of 
fact,  whether  it  was  delivered  as  a  deed,  and  that  depending 
upon  the  truth  of  the  special  matter  alleged  in  the  plea,  which 
if  not  pleaded,  the  defendant  could  only  avail  himself  of  by 
VOL.  z.  53 


418  GASES  IN  THE  COURT  OP  APPEALS 

UNIOS  BAXK  OF  MARYLAND  v.    RIDGELY — 1827. 

proof.  And  what  is  there  in  the  pleading  the  same  matter  that 
dispenses  with  the  proof,  and  imposes  upon  the  plaintiff  the  ne- 
cessity of  disproving  it?'  It  is  but  the  assertion  of  the  defen- 
dant in  the  shape  of  a  plea,  and  cannot  avail  him,  if  unsustain- 
ed  by  proof,  any  more  than  any  other  special  matter  alleged  in. 
avoidance,  tir  which  shows,  if  true,  that  the  instrument  of  writ- 
ing was  originally  void  at  common  law,  as  for  fraud,  coverture, 
&c.  or  that  it  had  become  void  subsequent  to  the  execution,  and 
befpre  the  bringing  of  the  suit,  as  by  erasure,  &c.  which  it  is  in- 
cumbent upon  the  defendant  alleging  it  to  prove — every  thing 
necessary  on  the  part  of  the  plaintiff,  the  signing,  sealing  and 
delivery  being  admitted,  and  the  issue  being  upon  the  matter 
specially  alleged  in  the  plea.  So  where  the  delivery  as  an  es- 
crow is  pleaded,  the  issue  is  upon  that  special  matter;  which 
being  alleged  and  relied  upon  by  the  defendant  to  show  that  it 
is  not  his  deed,  the  proof  of  that  allegation  (he  holding  the  af- 
firmative,) rests  upon  him.  And  if  there  be  no  proof  on  the 
part  of  the  defendant,  the  possession  of  the  instrument  by  the 
plaintiff,  is  prlma  facie  evidence  of  the  delivery  as  a  deed, 
which  is  all  he  has  to  show,  and  is  sufficient  to  sustain  the  issue 
on  his  part — the  signing  and  sealing  being  admitted,  and  the 
delivery  as  a  deed,  being  the  only  matter  in  issue  between  the 
parties,  upon  the  special  allegations  in  the  plea.  And  the  plain- 
tiff is  not  driven  to  any  further,  or  stricter  proof  of  the  delive- 
ry, than  such  as  is  held  to  be  sufficient  under  the  plea  of  gene- 
ral non  esf  factum.  When  it  is  said,  that  the  special  pleas  of 
escrow,  erasure,  &c.  throw  all  the  proof  upon  the  defendant,  it 
is  only  meant,  in  relation  to  the  special  matter  that  is  alleged, 
as  operating  to  do  away  the  effect  of  what  is  admitted,  to  wit, 
the  signing,  sealing  and  delivery,  in  the  cases  of  erasure,  &c. 
and  the  signing  and  sealing,  in  the  case  of  escrow,  but  not  the 
delivery  as  a  deed,  which  is  not  admitted.  Therefore,  if  the 
delivery  as  an  escrow  be  proved  on  the  part  of  the  defendant 
as  alleged  in  the  plea,  the  proof  of  the  performance  of  the  con- 
dition lies  upon  the  plaintiff  where  the  affirmative  is  with  him. 
In  this  view  of  the  plea  of  escrow,  if  this  was  the  case  of  any 
individual  plaintiff,  we  think,  in  the  absence  of  all  evidence  on 
the  part  of  the  defendant,  the  possession  and  production  of  the 
instrument  of  writing  by  the  plaintiff,  would  be  sufficient  prima 


OF  MARYLAJO).  419 


UNION  BANK  ov  MARYLAND  v.  KIHGELY. — 1827. 


facie  evidence  of  the  due  delivery  and  acceptance,  to  entitle  him, 
to  a  verdict,  on  the  issue  joined  upon  the  sixth  plea.  But  being 
the  case  of  a  corporation,  it  is  supposed  to  differ  from  the  case 
of  an  individual;  and  that  the  possession  and  production  of  the 
instrument  by  the  plaintiffs,  is  not  sufficient  legal,  evidence  of 
the  delivery  and  acceptance  as  a  deed,  without  some  entry  or 
memorandum  in  writing  of  such  acceptance.  Which  leads  to 
the  inquiry,  whether  a  written  acceptance  is  essential  to  the  va- 
lidity of  a  bond  executed  to  a  corporation;  and  that  involves 
the  consideration  of  the  question  arising  on  the  fourth  bill  of 
exceptions,  and  the  first  prayer  in  the  -fifth  bill  of  exceptions. 

It  is  contended  that  a  written  acceptance  must  be  produced; 
that  nothing  else  will  suffice;  and  that  no  other  facts  or  circum- 
stances, however  conclusive  they  might  be  in  the  case  of  an  in- 
dividual, can  be  received  to  raise  a  presumption  in  favour  of  a 
corporation,  of  its  corporate  assent,  or  from  which  its  adoption, 
or  acceptance  can  be  inferred,  on  the  broad  ground,  that  a  cor- 
poration aggregate  is  incapable  of  doing  any  act  except  by  writ- 
ing- 

But  is  it  true  that  a  corporation  is  incapable  of  doing  any  act 
that  is  not  evidenced  by  writing?  It  seems  to  have  been  former- 
ly held,  that  a  corporation  aggregate  could  only  act  by  its  com- 
mon seal,  could  do  nothing  without  deed.  But  that  doctrine 
is  now  no  where  sanctioned  as  a  universal  proposition.  It  has 
long  since  been  held,  that  such  a  corporation  may  employ  one 
in  ordinary  services  without  deed,  as  a  cook,  butler  or  servant, 
and  may  appoint  a  bailiff  to  distrain,  without  deed  or  warrant.  2 
Bac^ib.  tit.  Corporation,  (E.3,)  13.  3  Lev.  107.  •tfnon.l  Salk. 
191.  And  in  Harper  vs  Charlesworth,  4  Barn.  <§•  Cress.  575, 
Mr.  Justice  Bayle.y  said,  "a  corporation  can  only  grant  by 
deed,  yet  there  are  many  things  which  a  corporation  has  pow- 
er to  do  otherwise  than  by  deed.  It  may  appoint  a  bailiff,  and 
do  other  acts  of  the  like  nature."  And  it  is  now  well  settled, 
that  it  may  be  bound  by  a  promise  express  or  implied,  arising 
from  the  acts  of  its  agent,  appointed  and  authorised  by  a  cor- 
porate vote  only,  unaccompanied  by  the  common  seal. 

It  is  said  by  different  writers,  treating  of  the  manner,  in  whick 
corporations  aggregate  may  act,  that  "gifts  by  and  to  them 
must  be  by  deed. "  That  "in  general  a  corporation  aggregate 


420       CASES  IN  THE  COURT  OF  APPEALS 

*•• ' : ~ — • — -— — r^- 

Usios  BANK  OF  MARYLAND  v.  RIDOKLY.— 1827. 

cannot  take,  or  pass  away  any  interest  in  lands,  or  do  any  act 
of  importance  without  deed,"  &c.  But  conceding  that  ancient- 
ly a  corporation  aggregate  could  do  nothing  but  by  deed,  we 
have  seen,  that  in  more  modern  times  the  rule  has  been  broken 
in  upon,  in  the  language  of  P.  Williams  in  his  argument  in 
Rex  vs  Biggs,  3  P.  Wms.  423,  "for  conveniency's  sake."  And 
in  that  case,  which  was  an  indictment  for  erasing  an  endorse- 
ment on  a  bank  note,  there  being  a  special  verdict,  finding  the 
prisoners  guilty  of  the  erasure,  and  that  the  note  was  made  and 
signed  by  one  Joshua  ^dams,  who  was  entrusted  and  employ- 
ed by  the  bank  of  England  to  sign  bank  notes,  but  not  under 
the  common  seal,  it  was  elaborately  argued  by  P.  Williams, 
that  the  appointment  of  Jldams  was  not  valid,  because  not  made 
under  the  common  seal  of  the  corporation;  and  also  strongly 
urged  from  the  importance  of  the  trust,  and  not  being  an  ordi- 
nary employment,  that  if  in  any  case  whatever,  an  authority 
given  by  a  corporation  ought  to  be  under  its  common  seal,  it 
was  that.  The  prisoner,  however,  was  condemned,  and  the 
appointment  of  course  held  to  be  valid.  It  does  not  appear 
whether  the  appointment  of  Jldams  was  or  not  by  writing,  but 
it  was  without  deed,  it  was  not  under  the  common  seal  of  the 
corporation;  and  it  was  not  a  small  matter,  nor  an  appointment 
on  ordinary  service,  but  of  an  agent,  employed  in  an  important 
trust,  and  the  decision  too,  was  in  the  case  of  felony,  involving 
the  life  of  the  accused.  If  it  be  treated  as  an  appointment  in 
writing,  for  which  the  case,  neither  as  reported  in  Strange  18, 
nor  P.  Williams,  lurnishes  any  sufficient  warrant,  it  shows, 
that  the  old  doctrine,  that  a  corporation  aggregate  must  in  all 
things  act  by  its  common  seal,  and  can  do  ho  act  of  importance 
without  deed,  is  no  longer  regarded,  that  being  a  case  of  the 
appointment  without  deed,  of  an  agent  to  an  important  trust, 
connected  with  the  highest  interests  of  the  corporation;  and  if 
considered  as  an  appointment  not  evidenced  by  writing,  it  is  a 
decision  very  strongly  applicable  to  this  case. 

It  is  unnecessary  to  multiply  cases  to  show,  that  the  acts  of 
corporations  may  now  be  evidenced  by  writing  without  seal — 
that  is  fully  admitted;  but  it  is  strongly  urged,  that  although 
they  may  now  act  without  deed,  yet  that  their  acts  cannot  be 
widenced  otherwise  than  by  writing.  And  for  that  we  have 


OF  MARYLAND.  421 


Uxiosr  BANK  OF   MAUILAND  v.    KIUCELY  — 1827. 

been  referred  to  I  Fonb.  306,  (noteo.)  The  Bank  of  Colum- 
bia vs  Patterson's.  Jldirtr.  1  Crunch,  299,  and  Fteckner  vs 
United  States  Bank,  8  Wheaton,  338;  but  they  do  not  sup- 
port the  position.  In  the  note  in  Fonblanqitc  it  is  said,  "and 
the  agreement  of  the  major  part  of  a  corporation  being  entered 
in  the  corporation  books,  though  not  under  the  corporate  seal, 
will  be  decreed  in  equity."  The  only  ground  upon  which 
such  an  agreement  can  be  enforced,  is  the  capacity  of  a  cor- 
poration to  make  a  contract  without  seal,  contrary  to  the  an- 
cient doctrine.  But  it  is  not  there  said,  that  a  corporation  can 
make  no  agreement,  nor  do  any  act  except  by  writing;  nor  does 
the  inference  appear  to  be  a  ready  one,  that  an  agreement  not 
in  writing,  or  not  entered  upon  the  corporation  books,  cannot 
be  enforced.  And  opposed  to  such  an  inference,  is  the  case  of 
The  King  us  The  Inhabitants  of  Chipping  Norton,  5  East, 
239;  where  a  corporation  at  a  court  leet,  let  certain  tolls  belong- 
ing to  the  corporation  by  a  verbal  agreement;  and  it  was  held, 
that  the  corporation  could  not  pass  the  tolls  by  a  verbal  demise, 
but  that  it  was  a  license  to  collect  the  tolls,  and  might  be  a 
ground  on  which  to  apply  to  a  court  of  equity.  The  principle 
there  decided,  was  not  that  the  verbal  agreement  was  a  nullity, 
but  only  that  it  did  not  operate  at  law  to  pass  the  interest  in 
the  tolls,  which  could  only  be  demised  by  deed;  yet  thot  it 
bound  the  corporation  as  a  license,  and  was  a  contract  or  agree- 
ment fit  to  be  enforced  by  a  court  of  chancery.  In  The  Bank 
of  Columbia  vs  Patterson's,  Adrrfr.  the  court  takes  notice 
of  the  ancient  doctrine,  that  corporations  couid  do  nothing 
without  deed.  But  says,  they  may  now  "by  mere  vote,  or 
other  corporate  act  not  under  their  corporate  seal,  appoint  an. 
agent,  whose  acts  and  contracts,  within  the  scope  of  his  authori- 
ty, would  be  binding  on  the  corporation.*"  Now  to  say,  that 
a  corporation  may  "by  a  mere  vote  or  other  corporate  act," 
appoint  an  agent,  is  surely  not  to  say,  that  it  can  only  appoint 
an  agent  in  writing,  as  a  vote  need  not  of  necessity  be  reduced 
to  writing,  and  "other  corporate  act,"  are  very  indefinite  terms, 
and  would  rather  seem  to  imply  any  act,  whether  in  writing  or 
otherwise;  and  the  term  "mere  vote,"  would  seem  to  import 
a  naked  vote,  not  clothed  with  the  solemnity  of  writing.  An(f 
the  case  itself,  with  the  opinion  of  the  court  upon  the  whole 


421*  CASES  IN  THE  COURT  OF  APPEALS 

UNIOX  BANK  OF  MAUYLAND  v.  RIHGELY. — 1827. 

case,  seems  to  show,  that  the  terms  "a  'mere  vote  or  other  cor- 
porate act,"  were  not  intended  to  be  restricted  to  mean,  a  vote 
or  other  act  in  writing.  The  contract  which  gave  rise  to  the 
suit,  was  personal,  under  the  hands  and  private  seals  of  the 
agents  of  the  corporation.  But  it  appeared  in  evidence,  that  it 
was  for  the  exclusive  use  and  benefit  of  the  corporation,  and 
made  by  their  agents  for  purposes  authorised  by  the  charter, 
and  that  the  corporation  had  from  time  to  time  paid  money  on 
the  faith  of  it  to  the  plaintiff's  intestate.  And  from  that  evi- 
dence, the  court  decided,  that  "the  jury  might  legally  infer, 
that  the  corporation  had  adopted  the  contract  of  the  committee, 
and  had  voted  to  pay  the  whole  sum,  which  should  become 
due  under  the  contracts,  and  that  the  plaintiff's  intestate  had 
accepted  their  engagement,"  although  there  was  no  entry  or 
memorandum  in  writing  of  the  adoption  of  the  contract  by  the 
corporation,  nor  of  any  vote  for  the  payment  of  any  part  of  the 
money.  Here,  then,  was  an  unwritten  act  of  a  corporation, 
suffered  to  be  inferred  from  other  unwritten  acts  and  circum- 
stances. And  no  argument  can  fairly  be  drawn  from  the  cir- 
cumstance, that  the  corporation  was  defendant  in  that  case;  it 
was  not  put  upon  that  ground  by  the  court,  or  that  the  corpora- 
tion might  have  kept  any  thing  back,  or  that  its  recorded  vote 
had  been  lost;  but  the  decision  went  upon  the  broad  principle, 
that  a  corporation  might  act  \vithout  writing,  and  that  its  acts 
might  be  proved  by  circumstantial  evidence;  without  adverting 
to  any  distinction  between  a  corporation  plaintiff  and  defendant. 
Nor  could  a  corporation,  because  defendant,  be  presumed  to 
do,  what  by  its  constitution  it  was  incapable  of  doing.  Besides, 
it  will  be  remarked,  that  the  jury  were  permitted  to  infer,  from 
the  facts  and  circumstances  in  the  case,  that  the  corporation  had 
adopted  the  contracts,  and  voted  to  pay  the  money,  not  by  a 
written  act  of  adoption,  or  a  written  vote,  but  generally  that  it 
had  adopted,  them,  and  voted  to  pay  the  money  that  should  be- 
come due  under  them.  And  if  an  adoption  in  writing,  or  a 
written  vote,  had  been  intended,  it  would  most  probably  have 
been  so  said;  it  is  not  so  said,  and  there  does  not  appear  to  be 
any  thing  in  the  whole  case,  from  which  it  can  be  fairly  implied. 
And  ip  The  Kingvs  The  Inhabitants  of  Chipping  Norton, 
5  Eastj  239,  where  the  case  states  the  agreement  of  the  cor- 


OF  MARYLAND.  423 


UNION    HANK  OF   MAIITLANII  v.  HIW;KI.Y — 1827. 


poration  to  have  been  a  verbal  one,  which  though  not  sufficient 
to  pass  the  interest  in  the  tolls,  which  from  their  nature  could 
only  be  transferred  by  deed;  yet  it  was  held  to  be  a  ground 
for  an  application  to  a  court  of  equity;  which  could  not  have 
been,  if  the  agreement  was  void  for  want  of  being  in  writing. 
The  case  of  Fleckner  vs  The  United  States  Bank,  does  not 
sustain  the  position  contended  for.  It  is  the  case  of  a  tvritten 
vote  of  the  board  of  directors;  and  the  court,  acting  upon  the 
facts  of  that  case  says,  the  acts  of  such  body  or  board,  evi- 
denced by  a  written  vote,  are  as  completely  binding  upon  the 
corporation,  and  as  complete  authority  to  .their  agents,  as  the 
most  solemn  acts  done  under  the  corporate  seal.  It  vindicates 
only,  the  binding  effect  o(  a  written  vote  without  seal,  against 
the  argument  pressed  at  the  trial,  that  a  corporation  could  only 
act  through  the  instrumentality  of  its  common  seal/  but  goes  no 
farther,  and  does  not  touch  the  question,  whether  a  corporation 
can  act  otherwise  than  by  writing.  It  is  admitted  that  in  modern 
times  corporations  may  act  by'  writing  without  the  common 
seal;  but  it  is  supposed,  that  the  use  of  the  seal  grew  out  of  the 
state  of  the  times  in  which  it  originated,  when  seals  were  more 
common,  and  better  known,  than  signatures,  and  the  authenti- 
cation of  instruments  by  seals,  was  more  certain,  and  attended 
with  fewer  difficulties  and  perplexities,  than  any  other  mode  of 
authentication;  and  that  the  use  of  the  seal  is  only  dispensed 
with,  because  writing  may  now  be  proved  with  as  much  cer- 
tainty as  the  common  seal. 

But  that  would  seem  to  be  a  mistake,  and  that  the  greater 
facility  and  certainty,  attending  the  authentication  of  an  instru- 
ment by  the  use  of  the  common  seal,  was  not  the  reason  why 
it  was  originally  held,  that  corporations  could  act  in  no  other 
way.  It  would  have  been  a  very  good  reasoR  for  preferring  the 
use  of  the  seal,  to  any  other  less  certain  mode  of  authentica- 
tion, but  not  a  sufficient  reason  for  rejecting  all  other  modes; 
nor  does  it  any  where  appear,  that  the  rule  was  originally  in- 
troduced for  that  reason.  Blackstone,  in  his  commentaries, 
vol.  1,  page  475,  says,  "a  corporation  being  an  invisible  body, 
cannot  manifest  its  intentions  by  any  personal  act  or  oral  dis- 
course; it  therefore  only  acts  and  speaks  by  its  common  seal. 
For  though  the  particular  members  may  express  their  private 


CASES  IN  THE  COURT  OF  APPEALS 


U\ION  BAXK  OF  VlAUYtAND  v.  UIDRELY. — 1827. 


consents  to  any  acts,  by  words  or  signing  their  names,  yet  this 
does  not  bind  the  corporation;  it  is  the  fixing  of  the  seal,  and 
that  only,  which  unites  the  several  assents  of  the  individuals 
who  compose  the  community,  and  makes  one  joint  assent  of 
the  whole."  It  was  not,  therefore,  as  a  mere  rule  of  evidence 
that  the  common  seal  was  required,  because  more  certain,  and 
more  susceptible  of  proof  than  writing,  or  any  other  mode  of 
authentication;  but  because  it  was  supposed,  that  a  corporation, 
being  an  invisible  body,  it  was  incapable  of  manifesting  its  in- 
tentions, by  any  personal  act  or  oral  discourse;  and  that  having 
neither  hand  nor  mouth,  it  could  no  more  write  than  speak. 

But  as  some  mode  of  action  was  necessary  to  its  operations, 
the  common  seal,  which  is  incident  to  a  corporation,  was  re- 
sorted to  as  an  artificial  representative;  embodied  in  which 
shape,  it  could  alone  appear — the  hand  and  mouth  of  the  cor- 
poration, by  which  only  it  was  permitted  to  act  or  speak.  This- 
technical  nicety  has  however  gradually  given  way  to  the  pub- 
lic convenience,  and  the  attenuated  notion  that  the  seal  only 
was  capable  of  uniting  the  several  assents  of  the  individuals 
composing  the  community,  and  making  one  joint  assent  of  the 
whole,  has  yielded  to  the  sober  sense  of  mankind,  which  no- 
longer  delights  in  mere  technicalities.  Yet  the  character  and 
constitution  of  corporations  remaining  the  same,  and  the  united 
assents  of  the  individuals  composing  the  community,  being  as 
necessary  now  as  formerly,  to  constitute  an  act  of  a  corporationy 
their  assent  mu^t  be  proved  in  some  way.  But  by  what  law, 
or  on  what  principle,  has  writing  been  substituted  for  the  com- 
mon seal,  and  had  imparted  to  it,  the  magical  power  which  it 
did  not  formerly  possess,  of  uniting  -the  several  assents  of  the 
different  individuals  who  compose  the  community?  Let  it  be 
borne  in  mind,  that  at-the  time  when  the  seal  was  alone  held  to- 
be  capable  of  performing  that  office,  writing  was  necessary  to 
show  to  what  it  was  the  seal  did  unite  the  several  assents  of  th& 
individual  corporators.  But  the  writing  alone  was  nothing,  it 
had  no  agency  in  manifesting  the  assent  of  the  corporation,  it 
\?as  the  thing  only  assented  to,  and  the  seal  it  was, appended  to 
it,  that  spoke  the  presence  of  the  corporation,  and  manifested 
its  assent.  If  there  be  any  law  substituting  writing  for  the 
common  seal,  and  declaring  it  to  be  the  only  means  by  which 


OF  MARYLAND;  4&5 


UNION  BANK  UF  MARYLAND  v.   RIDOEI.T.— 1827. 


the  assent  of  a  corporation  can  be  manifested,  it  has  not  been 
produced,  and  we  know  of  none  such;  or  if  there  be  any  de- 
cisive authorities  establishing  that  position,  they  have  not  been 
referred  to.  There  aie  many  authorities  showing  that  corpo- 
rations may  act  without  seal,  among  which  may  here  be  again 
mentioned  the  cases  before  referred  to,  of  The  King  is  Bigg, 
(in  which  the  corporation  was  not  a  party,)  where  it  was  held, 
that  the  Bank  of  England  might,  without  the  common  seal, 
entrust  and  employ  a  mar.  to  sign  bank  notes;  the  note  (o)  in  I 
Fonb.  306,  where  it  is  said,  "and  the  agreement  of  the  major 
part  of  a  corporation  being  entered  in  the  corporation  books, 
though  not  under  the  corporate  seal,  will  be  decreed  in  equity;" 
and  Fleckner  vs  The  United  States  Bank,  in  which,  in  speak- 
ing of  a  written  vote  of  the  board  of  directors  of  that  bank, 
the  court  says — "the  acts  of  such  a  body  or  board,  evidenced 
by  a  written  vote,  are  as  completely  binding  upon  the  corpora- 
tion, and  as  complete  authority  to  their  agents,  as  the  most  so- 
lemn acts  done  under  the  corporate  seal."  But  they  go  no  far- 
ther. Seeing  then,  that  the  seal  was  originally  required,  not 
for  the  purpose  merely  of  authenticating  the  writing  to  which, 
it  was  appended,  but  for  the  technical  purpose  of  uniting  and 
expressing  the  joint  assent  of  the  corporation  which  could  not 
be  done  by  the  particular  members  signing  their  names,  and 
that  writing  was  not  competent  to  perform  that  office,  and  there 
being  nothing  peculiar  to  modern  times  imparting  to  it  that 
quality  $  it  cannot  be  required  for  that  purpose;  but  if  reqnired 
at  all^  it  can  only  be  as  evidence  of  the  acts  of  a  corporation, 
which,  like  the  acts  of  natural  persons,  are  subjects  of  proof. 
And  the  seal  being  no  longer  regarded  as  a  necessary  agent,  to 
express  the  intention  of  a  corporation,  by  uniting  the  several 
assents  of  the  individual  members,  and  making  one  joint  as- 
sent of  the  whole,  (which  it  is  seen  may  now  be  otherwise  ma- 
nifested,) by  what  rule  of  evidence  is  it,  that  corporate  acts  are 
all  required  to  be  evidenced  by  writing,  which  of  itself,  when 
unaccompanied  by  a  seal,  is  only  parol  evidence?  We  know  of 
no  such  rule  in  practice;  the  general  principles  of  evidence  ac- 
)inowledge  none  such,  and  when  the  acts  creating  corporations, 
do  not  direct  it,  we  do  not  perceive  why  their  acts  must  be  es- 
tablished by  positive  record  proof  only;  and  why  the  corpci- 
YWL.  Ii  54 


426  CASES  IN  THE  COURT  OF  APPEALS 

UHIOIC  BANK  OF  MARYLAND  v.   RJDOELT. — 1827. 

rate  assent  may  not  be  inferred  from  facts  and  circumstances, 
which  in  regard  to  individuals,  would  be  decisive  in  relation  to 
transactions  of  a  similar  character.  The  question  being,  (now 
that  the  seal  is  dispensed  with  for  that  purpose,)  not  as  to  the 
mode  of  uniting  the  corporate  assent,  but  as  to  the  mode  of 
proving  the  assent  or  act  of  a  corporation.  The  proof  by  writ- 
ing may  be  more  eligible  than  facts  and  circumstances  not  re- 
duced to  writing,  because  more  certain,  and  attended  with  less 
difficulty  and  perplexity;  but  it  does  not  therefore  follow,  that 
it  is  the  only  mode  of  proof  that  can  be  admitted. 

If  that  could  be  received  as  a  sufficient  reason  for  requiring 
•written  evidence  of  the  acts  of  a  corporation,  it  Would  apply 
with  equal  force  to  the  transactions  of  natural  persons,  written 
evidence  of  which  wouldj  as  well  as  in  the  case  of  a  corpora- 
tion, be  attended  with  more  certainty,  and  fewer  difficulties^ 
than  circumstantial  proof.  But  such  a  principle  has  never  been 
admitted  among  the  general  rules  of  evidence,  and  the  acts  of 
individuals  are  continually  established  by  presumptions  arising 
from  other  facts  and  circumstances;  and  that  not  confined  to  the 
acts  of  a  single  individual,  but  extending  equally  to  the  joint 
transactions  of  several,  though  of  the  most  solemn  and  impor- 
tant character.  And  it  seems  to  us,  that  (the  seal  being  dropt 
as  necessary  to  unite  the  several  assents  of  the  individual  mem- 
bers,) there  is  nothing  to  show,  that  writing  is  substituted  in 
the  place  of  the  seal  for  that  purpose,  and  that  the  same  pre- 
sumptions arise  from  the  acts  of  corporations,  as  from  the  acts 
of  individuals;  consequently,  that  the  Corporate  assent,  and  cor- 
porate acts,  not  reduced  to  writing,  may  be  inferred  from  other 
facts  and  circumstances,  without  a  violation  of  any  known  rule 
of  evidence.  In  which  we  feel  ourselves  strengthened  by  au- 
thorities that  will  here  be  briefly  adverted  to. 

In  The  King  vs  *flmory,  1  T.  R.  575,  it  is  clear  from  the 
course  of  reasoning,  both  of  the  judges  and  the  counsel  con- 
cerned in  the  argument  of  the  cause,  that  the  acts  of  the  cor- 
porate officers  of  an  existing  corporation,  were  considered  as 
admissible  evidence,  from  which  the  fact  of  the  acceptance  of  a 
new  charter  might  be  inferred,  and  that  it  was  riot  necessary  to 
produce  a  written  instrument,  or  recorded  vote  of  acceptance, 
if  the  acceptance  of  a  new  charter  by  an  existing  corpo- 


OF  MARYLAND.  42? 


UWION  BANK  OF   MAIITLAMI  r.  KIDCELT.  —  1827. 

ration,  need  not  be  in  writing,  but  may  be  inferred  from  other 
facts  and  circumstances,  it  is  difficult  to  imagine,  why  other  acts 
of  a  corporation,  or  the  acceptance  of  other  instruments,  may 
not  be  inferred  in  like  manner.  In  The  King  vs  The  Inha- 
bitants of  Chipping  Norton,  we  have  seen,  that  the  verbal 
agreement  of  a  corporation  was  held  to  be  a  ground  for  an  ap- 
plication to  a  court  of  equity.  The  agreement,  therefore,  was 
not  considered  void,  for  the  want  of  being  in  writing.  In  Wood 
vs  Tate,  5  Bos.  4*  Pull.  246,  which  was  an  action  of  replevin, 
founded  upon  a  distress  for  rent  by  the  bailiff,  of  the  bailiffs  and 
burgesses  of  the  borough  cf  Morpeth,  it  was  held  by  the  court, 
that  the  payment  of  rent  from  time  to  time,  by  the  plaintiff,  to 
the  officers  of  the  corporation,  was  alone  sufficient  evidence 
of  a  tenancy  from  year  to  year  under  the  corporation,  to  en- 
title the  corporation  to  distrain  for  rent  in  arrear.  In  Doc,  on 
the  demise  of  the  Earl  of  Carlisle,  vs  Woodman  and  Fors- 
ter,  S  East,  228,  it  was  held,  that  the  payment  of  rent  by  the 
bailiffs  of  the  borough  of  Morpeth,  xvas  evidence  of  a  tenancy 
in  the  corporation.  We  have  before  seen,  that  in  The  Bank 
of  Columbia  vs  Patterson's  rfdm'rs.  where  it  appearing  in 
evidence  that  the  corporation  had  from  time  to  time  paid  mo- 
ney on  the  personal  contracts  under  their  private  seals  of  its 
committee,  which  were  for  the  benefit  of  the  corporation,  it 
was  held  by  the  supreme  court  of  the  United  States,  that  the 
jury  might  legally  infer  from  that  evidence  that  the  corporation 
have  adopted  the  contracts.  In  The  Proprietors  of  the  Canal 
Bridge  vs  Gordon,  1  Pick.  Rep.  297,  it  was  held,  that  corpora- 
tions could  be  bound  without  a  vote  or  deed  by  implications 
from  corporate  acts.  Chief  Justice  Parker,  in  delivering  the 
opinion  of  the  court,  said,  "It  is  true  that  the  acts,  doings  and 
declarations  of  individual  members  of  the  corporation,  unsanc- 
tioned  by  the  body,  are  not  binding  upon  it;  but  it  is.  equally 
true,  that  inferences  may  be  drawn  from  corporate  acts*  tending 
to  prove  a  contract  or  promise,  as  well  as  in  the  case  of  an  in- 
dividual; and  that  a  vote  is  not  always  necessary  to  establish 
such  contract  or  promise."  The  question  was,  whether  The. 
Proprietors  of  the  Canal  Bridge  had  assented  to  a  proposi- 
tion by  another  corporation?  And  proceeding  to  comment  upon 
the  evidence,  the  judge  said,  '^here  was  a  direct  and  plain  prc* 


428  CASES  IN  THE  COURT  OF  APPEALS 

UNIOJT  BAITK  OF  MAHTLAND  *>.  KIHOELT. — 1827. 

position,  and  if  it  had  been  met  by  as  plain  an  acceptance  by 
vote  recorded,  no  one  would  imagine  that  any  question  could 
£rise  as  to  the  effect."  And  he  added,  "the  question  is  nar- 
rowed to  this;  have  The  Proprietors  of  the  Canal  Bridge  as- 
sented to  this  proposition  and  acted  under  it?  We  find  no  vote 
to  this  effect;  but  we  do  find,  that  the  cross  bridge  was  suffered 
to  unite  with  theirs  pursuant  to  the  proposition,  and  that  for 
lour  years,  all  were  suffered  to  pass  without  toll,  who  came 
from  Charlestown  to  Cambridge,  or  vice  versa.  Now  corpo- 
rations can  be  bound  by  implications,  as  well  as  individuals,  as 
has  been  before  stated,  and  no  acts  could  be  stronger  to  show  an 
assent  to  a  proposition,  an  agreement  or  bargain,  than  those 
which  have  been  mentioned."  Here  was  no  vote  or  written 
memorandum,  nor  any  foundation  for  presuming  a  vote,  or 
other  written  assent  of  the  corporation.  On  the  contrary,  the 
court  went  expressly  on  the  ground  that  there  was  no  vote,  but 
that  the  assent  of  the  corporation  might  be  inferred  from  other 
corporate  acts.  And  in  Whittington  vs  The  Farmers  Bank  of 
Somerset  and  Worcester,  before  adverted  to,  it  was  decided, 
that  it  was  not  necessary  an  order  of  the  president  and  directors 
should  be  in  writing  to  give  it  validity,  but  that  it  might  be  prov- 
ed, if  not  reduced  to  writing,  by  oral  testimony.  Other  decisions 
in  Pennsylvania,  New- York  and  Massachusetts,  might  with 
effect  be  brought  into  this  discussion,  but  it  is  thought  to  be  unne- 
cessary. In  Smith  and  others  vs  The  Governor  and  Company 
of  the  Bank  of  Scotland,  in  the  House  of  Lords,  1  Dow's  Rep. 
272,  the  appellants  were  sureties  in  bond  to  the  bank  of  Scotland, 
with  Patterson  the  principal,  who  was  an  agent  of  the  bank. 
The  bond  was  at  first  sent  to  the  bank,  but  returned  to  Patter- 
son to  get  it  properly  executed,  and  was  then  sent  back  again 
to  the  bank;  but  while  it  was  in  transitu,  and  before  it  got 
back  to  the  bank,  or  into  the  hands  of  its  officers,  Patterson 
was  removed  from  his  office.  One  of  the  questions  raised  in 
the  House  of  Lords  was,  as  to  the  due  delivery  of  the  bond, 
Lord  Eldon  said,  "the  court  below  had  attended  to  the  objecr 
tion  with  respect  to  the  delivery  of  the  deed,  they  seemed  to 
have  considered  it  properly  delivered,  and  he  did  not  think, 
there  was  sufficient  ground  to  quarrel  with  their  decision  on 
that  head."  Lord  Redesdale  said,  "as  Patterson  seemed  to 


OF  MARYLAND.  429 


Usioir  BANK  OF  MAIITLAHD  v   KIDGEIT. — 1827 


have  acted  as  the  agent  of  the  bank  in  the  transaction,  delivery 
to  him  might  be  considered  as  delivery  to  the  bank."  And  the 
House  of  Lords  decided,  "that  if  not  impeachable  on  other 
grounds,  it  was  to  be  considered  as  a  delivered  deed."  The 
case  was  argued  by  Sir  Samuel  Romilly  and  Mr.  Brougham 
for  the  sureties,  and  is  a  very  strong  case.  The  opinion  of 
Chief  Justice  Mashall,  in  The  Bank  of  the  United  States  vs 
Dandridge,  in  the  Circuit  Court  of  Virginia,  (which  was  ex- 
actly similar  to  this,)  "that  the  bond  was  inoperative,  unless  the 
assent  thereto  of  the  directors,  had  been  entered  on  the  record 
of  their  proceedings,"  was  pressed  upon  us  in  the  argument. 
And  if  any  thing  could  have  caused  me  to  doubt,  it  would  have 
been  the  opinion  of  that  distinguished  judge;  the  decision  how- 
ever, of  the  circuit  court,  has  we  are  informed  been  reversed 
in  the  Supreme  Court  of  the  U.  S.  by  the  unanimous  opinion  of 
all  the  other  judges.  It  will  be  admitted,  that  a  corporation 
may  be  bound  by  the  acts  of  its  duly  authorised  agent,  although 
such  acts  are  not  reduced  to  writing.  The  charter  of  this  bank 
requires,  that  the  cashier  shall  give  bond  with  two  or  more  se- 
curities, "to  the  satisfaction  of  the  president  and  directors." 
If  there  had  been  no  such  provision,  and  the  corporation  had 
appointed  an  agent,  or  board  of  agents,  or  a  committee,  for  that 
purpose,  could  it  have  been  successfully  contended,  that  the  ac- 
ceptance of  the  bond  by  such  agent  or  committee,  or  board  of 
agents,  must  have  been  in  writing?  If  not,  what  is  there  in 
this  case,  to  distinguish  it  materially  from  that?  Are  not  the  di- 
rectors constituted  by  the  charter  the  duly  autl  orised  agents  of 
the  corporation? 

By  the  seventh  section  of  the  charter,  it  is  provided,  that 
"the  affairs  of  the  said  company  shall  be  conducted  by  a  presi- 
dent and  sixteen  directors,  together  wilh  such  other  directors 
as  the  state  shall  appoint."  By  the  eighth  section,  the  direc- 
tors are  empowered  to  appoint  a  cashier  and  other  officers  for 
conducting  the  business  of  the  corporation.  By  the  ninth  sec- 
tion, the  president  and  directors  are  empowered  to  make  by- 
laws, &c.  for  the  government  of  the  corporation,  &c.  By  the 
Oth  fundamental  article  of  the  constitution,  the  piesident  and 
eight  directors  are  constituted  a  board  for  the  transaction  of 
business;  and  by  the  14th,  the  cashier  is  required  to  give  bond 


430  CASES  IN  THE  COURT  OF  APPEALS' 

UNION  BANK  OF  MAHYLANH  v.  UIDGF.LT. — 1827. 

with  two  or  more  sureties,  to  the  satisfaction  of  the  president 
and  directors. 

The  directors  then  are  agents  of  the  corporation  appointed; 
by  the  charter,  and  why  should  their  acts,  within  the  scope  of 
their  authority,  be  required  to  be  in  writing,  more  than  the  acts 
of  agents  appointed  by  the  corporation  itself?  The  acceptance, 
of  the  cashier's  bond,  is  within  the  scope  of  their  authority, 
and  the  terms  of  the  charter  from  which  they  derive  that  au- 
thority, do  not  require  their  acceptance,  or  their  being  satisfied 
with  the  sureties  in  the  bond,  to  be  in  Writing,  nor  do  we  per- 
ceive on  what  ground  the  affirmative  of  the  proposition  can  at 
this  clay  be  maintained.  But  it  is  thought  unnecessary  farther 
to  prosecute  the  examination  of  this  branch  of  the  case.  The 
bond  in  question,  which  was  not  attested,  having  been  found 
deposited  among  the  archives  and  valuable  original  papers  and 
documents  of  the  bank,  in  an  iron  chest  in  tlie  banking-house 
ol  the  corporation,  together  with  other  papers,  purporting  to 
be  the  bonds  of  the  tellers,  book-keepers,  and  other  inferior  of- 
ficers; and  having  been  produced  at  the  trial  by  the  plaintiffs, 
and  Higginbothom,  whose  original  appointment  as  cashier,  is 
recited  in  the  bond,  having  been  continued  in  the  constant  em-> 
ployment  of  the  bank  from  that  time  until  he  was  dismissed  in 
1819,  without  any  reappointment,  or  on  any  other  bond  being 
given,  we  think  the  jury,  in  the  absence  of  all  other  evidence 
respecting  the  execution  of  the  bond,  ought  to  have  been  per- 
mitted to  infer,  that  it  was  duly  executed  and  delivered  by  the 
defendant,  and  accepted  by  the  plaintiffs;  which  acceptance  ne- 
cessarily included  the  approbation  of  the  board,  or  their  satis-, 
faction  with  the  sureties,  and  was  not  necessary  to  be  in  writ- 
ing- 

The  question  presented  by  the  plaintiffs'  sixth  bill  of  excep- 
tions, is  upon  the  admissibility  of  the  corporation  books,  on 
proof  that  they  were  kept  by  Pierce  L.  Tanner  and  Jacob 
Hart,  as  officers  of  the  corporation;  that  the  several  entries 
contained  in  the  books,  were  in  the  proper  handwriting  of  Tan- 
ner and  Hart',  that  they  were  kept  under  the  superintendence 
and  direction  of  Higginbothom;  that  Hart  was  dead,  and 
that  Tanner  was  residing  out  of  the  jurisdiction  of  the  court 
in  parts  nnknownj  which  were  rejected  by  the  court  as  inad- 


OF  MARYLAND.  431 


USION   BANK  OP    MAIULAND  v.  RIDOELT.  — 1827. 


missible.  And  perhaps  it  could  not  well  have  been  other- 
wise, after  the  bond  on  which  the  suit  was  brought  had  been 
rejected. 

It  appears  from  the  pleadings  in  the  cause,  which  are  very 
prolix  and  complicated,  that  the  fact  of  there  being  in  the 
books,  false  and  deceptious  entries,  made  by  the  clerks  with 
the  knowledge  and  connivance  of  Higginbothom,  were  dis- 
tinctly put  in  issue  on  several  of  the  breaches  assigned  in  the- 
replication.  The  books  were  not  offered  for  the  purpose  of 
proving  the  truth  of  the  facts  which  the  entries  professed  to  as- 
sert, as  in  the  case  of  an  offer  to  prove,  by  the  entries  in  a  book, 
the  delivery  of  the  articles  charged.  But  to  show  as  facts  what 
entries  were  in  the  books,  which  could  only  be  done  by  the 
production  of  the  books  themselves.  For  which  purpose,  un- 
der the  pleadings  in  the  cause,  and  being  of  opinion  that  the 
bond  was  improperly  rejected,  we  think  the  books  ought  to 
have  been  received  in  evidence,  on  proof  that  they  were  kept 
by  Tanner  and  Hart  as  officers  of  the  bank,  and  that  the  en- 
tries were  in  their  handwriting;  which  we  think  might  well  be 
done  in  such  a  case,  in  order  to  lay  a  foundation  for  letting  in 
other  testimony  to  show  fraud,  malconduct,  neglect,  or  viola-f 
tion  of  duty  on  the  part  of  Higginbothom,  and  of  Tanner,  in 
relation  to  the  entries,  arid  the  manner  of  keeping  the  books. 
Moreover,  it  is  stated  in  the  exception,  that  the  plaintiffs  offer- 
ed to  prove  that  the  books  were  kept  under  the  superintendence 
and  direction  of  Higginbothom;  and  if  that  were  the  fact, 
their  admissibility  was  no  more  subject  to  objection,  than  if 
they  had  been  kept  by  himself. 

Upon  the  whole,  then,  we  concur  in  opinion  with  the  Balti- 
more county  court  on  the  plaintiffs'  first  bill  of  exceptions,  an<i 
differ  from  tha*  court  upon  all  the  other  exceptions  taken  by 
the  plaintiffs. 

The  questions  raised  on  the  demurrers  by  the  defendant,  in 
relation  to  the  duration  oi  the  cashier's  bond,. present,  we  think, 
but  little  difficulty,  and  will  be  briefly  disposed  of.  The  ori- 
ginal act  of  incorporation  was  limited  in  its  duration  to  the  ex- 
piration of  the  year  1815,  and  to  the  end  of  the  next  session  of 
assembly  thereafter,  which  was  the  6th  day  of  February  1817j 
by  the  act  of  1815,  ch.  167,  it  was  extended  to  the  1st  o£ 


432  CASES  IN  THE  COURT  OF  APPEALS 

UNION  BANK  OF  MARYLAND  v.   HIDOEZ.T.— 1827. 

January  1835,  and  to  the  end  of  the  session  of  the  general  as- 
sembly next  thereafter.  By  the  charter  the  directors  are  to  be 
chosen  annually,  and  for  that  reason,  connected  with  the  eighth 
section  authorising  the  directors  for  the  time  being  to  appoint 
a  cashier  and  other  officers,  it  hats  been  contended  first,  that  the 
appointment  of  cashier  is  an  annual  appointment,  and  that  the 
obligation  of  the  bond  in  question  did  not  extend  beyond  the 
end  of  the  year  next  ensuing  the  appointment  of  Higginbo- 
tJiom  as  cashier.  If  the  premises  were  true,  the  conclusion 
would  be  unavoidable.  But  the  premises,  we  think,  are  not 
true;  and  that  the  appointment  of  cashier  is  not  an  annual  ap- 
pointment, but  limited  only  by  the  duration  of  the  charter, 
subject  to  the  removal  of  the  incumbent  by  the  directors,  as  oc- 
casion may  require.  If  the  cashier  was  a  mere  elerk  or  agent 
of  the  directors,  who  are  themselves  annually  appointed,  it 
might  be  otherwise;  but  he  is  not  the  mere  servant  or  clerk  of 
the  directors  who  appoint  him,  but  an  officer  of  the  corporation, 
appointed  by  its  agents  duly  authorised  for  that  purpose,  whose 
limited  term  of  service  has  no  connexion  with  the  duration  of 
his  appointment.  The  provision  in  the  charter,  "that  the  di- 
rectors for  the  time  being  shall  have  power  to  appoint  a  cash- 
ier," does  not  mean  that  the  office  of  cashier  must  annually  be- 
come vacant,  and  that  every  new  set  of  directors  are  to  appoint 
a  new  cashier.  The  eighth  section  of  the  charter  provides  for 
the  annual  election  of  directors;  and  if  it  had  been  intended 
that  a  cashier  should  be  also  annually  appointed,  the  reasonable 
presumption  is,  that  it  would  have  been  so  directed.  And  in 
the  absence  of  any  such  provision,  the  words  "the  directors  for' 
the  time  being  shall  have  power  to  appoint  a  cashier."  &c.  must 
be  understood  as  meaning  only,  that  whenever,  for  any  reason, 
the  appointment  of  a  cashier  should  be  necessary,  the  then 
board  of  directors  should  be  authorised  to  make  the  appoint- 
ment. In  giving  this  construction  to  the  eighth  section,  some 
aid  is  derived  from  the  use  of  the  same  language  in  the  ninth 
section,  which  provides  "that  the  president  and  directors  for 
the  time  being,  may  make  all  such  rules,  orders,  by-laws  and 
legulations.  for  the  government  of  the  corporation,"  &c.  Now 
it  cannot  be  intended  that  every  new  board  shall  make  a  new 
set  of  by-laws,  &c.  but  only  when  by-laws,  &c,  are  to  benjade, 


OF  MARYLAND. 


UNION  BANK  OF  MARYLAND  v.  HIDGELT. — 1827. 


to  authorise  the  making  them  by   the  then  board  of  president 
and  directors. 

But  it  is  contended,  secondly,  that  the  bond  in  this  case  is 
only  co-extensive  with  the  limitation  of  the  original  act  of  in- 
corporation; that  is,  that  it  does  not  reach  beyond  the  expirati- 
on of  the  year  1815,  and  the  end  of  the  next  session  of  assem- 
bly thereafter,  which  was  the  6th  of  February  1817,  and  that 
the  defendant  is  only  responsible  for  violations  by  Higginbo- 
thom  of  the  condition  of  the  bond',  between  the  date  and  the 
6th  of  February  1817.  In  construing  this  bond,  we  must  look 
to  the  intention  of  the  parties  at  the  time  it  was  executed.  It 
is  a  question  of  intention  which,  when  ascertained,  must  govern 
the  construction.  When  the  bond  was  executed  then  the  act  of 
incorporation,  under  which  it  was  given,  was  limited  in  its  du- 
ration to  the  6th  of  February  1817.  The  bond  looked  to  the 
time  for  which  Higginbothom  Was  appointed,  and  that  was  re- 
stricted by  the  limitation  of  the  charter  as  it  then  stood.  What 
then  was  the  intention  of  -the  parties?  And  where  is  that  in- 
tention to  be  found?  Where  but  in  the  original  act  of  incor- 
poration, under  which  the  bond  was  executed?  And  looking 
to  that  act,  it  would  seem  to  be  very  clear,  that  no  responsibili- 
ty was  contemplated  beyond  the  period  of  its  duration — ''there 
was  no  idea  then,  of  carrying  it  any  further.''  The  parties 
knew  the  legal  duration  of  the  charter  expressed  upon  the 
face  of  it;  they  contracted  with  a  view  to  that  duration,  and 
the  contract  must  be  expounded  as  the  law  was  when  the  con- 
tract was  made.  The  president  and  directors,  under  the  au- 
thority given  them  by  the  act  of  incorporation,  to  appoint  offi- 
cers of  the  corporation,  could  not  appoint  them  tor  a  term  of  ser- 
vice exceeding  the  legal  existence  of  the  corporation.  With 
that  corporation,  limited  in  its  duration  to  the  6th  of  February 
1817,  the  defendant  contracted  for  the  fidelity  of  one  of  its  of- 
ficers while  in  its  service,  which  service  could  not,  as  the  law 
then  was,  point  to  a  period  beyond  the  existence  of  the  corpo- 
ration itself.  It  is  true  a  power  rested  in  the  legislature  to  ex- 
tend the  duration  of  the  charter,  which  has  since  been  done, 
But  it  was  not  with  the  corporation  in  its  enlarged  shape,  that 
the  defendant  contracted.  And  what  the  contract  was,  at  the 
time  it  was  entered  into,  so  it  remains;  and  the  act  of  1815, 
VOL.  t  53 


CASES  IN  THE  COURT  OF  APPEALS 


U\iov  BANK  OF  MARII.AND  v.  KIDGELY.  — 1827. 


extending  the  duration  of  the  charter,  could  not  enlarge  the  li- 
ability of  the  defendant  without  his  consent.  If  he  had  been, 
asked  at  the  time  of  executing  the  bond,  whether  he  would  be 
willing  to  become  a  surety  for  Hizginbothom,  for  any  length 
of  time  to  which  the  charter  might  be  extended  by  the  legisla^ 
lure,  of  which  it  was  a  creature,  it  may  be,  that  he  would  have 
assented  to  it;  but  it  is  by  no  means  evident  that  he  would;  and 
\ve  are  not  to  speculate  on  what  he  might  have  been  willing  to 
do.  We  can  look  only  to  what  he  did.  The  bond  is  general  to 
The  President  and  Directors  of  the  Union  Bank  of  Mary- 
land, and  recites,  that  they  had  employed  Higginbothom  in 
the  capacity  of  the  cashier,  and  such  other  business  as  they 
might  think  fit  to  employ  him  about;  without  a  word  ia  rela- 
tion to  any  extension  of  the  charter,  or  any  services  to  be  per- 
formed beyond  the  time  to  which  the  then  charter  was  limited. 
We  cannot  then  presume,  that  any  extension  of  the  charter  was 
in  the  contemplation  of  the  pa'rties,  but  that  the  contract  was 
made  with  a  view  to  a  law,  which  by  its  own  limitation  was  to 
expire  on  the  6th  of  February  1817;  and  we  must  expound  the 
contract,  by  the  law  as  it  then  was,  and  not  by  the  continuing 
act  of  1815,  which  did  not  enter  into  the  contract,  and  could 
not  enlarge  it.  We  think,  therefore,  that  the  defendant  is  not 
responsible  on  that  bond  or  contract,  for  any  thing  done,  or 
omitted  to  be  done,  by  Kigginbothom,  after  the  6th  of  Febru- 
ary 1S17,  acting  in  the  character  of  cashier;  and  that  the  seve- 
ral demurrers  on  the.  part  of  the  defendant  were  properly  sus- 
tained by  the  court  below. 

The  authorities  relied  upon  by  the  counsel  for  the  plaintiffs 
to  show,  that  the  day  laid  is  often  immaterial,  and  that  the  de- 
murrers could  not  be  supported,  whatever  might  be  the  legal 
duration  of  the  bond,  are  not  applicable  to  such  a  case  as  this. 
It  is  very  certain,  that  the  day  laid  is  frequently  not  material; 
as  in  trespass,  where  the  injury  charged  may  be  proved  to  have 
been  committed  on  a  day  before  or  after  the  time  stated  in  the 
declaration;  provided  it  appears  to  have  been  before  the  action 
was  brought,  the  substantial  part  of  the  issue  being,  whether 
the  trespass  was  committed,  and  not  on  what  day  it  was  com- 
mitted. And  if  in  such  a  case,  the  day  was  material,  as  the  ob- 


OF  MARYLAND,  435 

THOMAS  v.   Tunvur.  —  1827. 

jection  would  not  appear  upon  the  record,  but  depend  upon  the 
evidence,  it  could  not  be  taken  advantage  of  by  demurrer. 

But  here,  so  far  as  the  breaches  demurred  to  allege  matter  as 
violations  of  the  condition  of  the  bund,  after  the  sixth  of  Fe- 
bruary in  the  year  1817,  the  time  laid  is  material;  it  is  the  very 
matter  in  controversy  between  the  parties,  depending  upon  the 
true  construction  of  the  contract,  and  raises  the  question  of  the 
legal  responsibility  of  the  defendant  for  any  acts-or  omissions 
of  Higginbothom  as  cashier^  after  the  period  of  the  original  li- 
mitation of  the  charter,  and  the  objection  does  not  depend  upon 
the  evidence,  but  appears  upon  the  record. 

The  objection  is  not  to  the  form  in  which  the  breaches  are 
assigned,  nor  to  the  introduction  of  merely  immaterial  matter, 
that  might  be  treated  as  surplussage;  but  to  the  allegation  .of 
material  matter  beyond  the  responsibility  of  the  defendant,  on 
which  he  could  not  with  safety  have  gone  to  issue. 

REVERSED,  AND  PROCEDENDO  AWARDED. 


THOMAS'S  Lessee  vs  TURVEY.  —  June,  1S27. 

A-  sheriff's  return  to  a  fieri  facias,  which  states  a  levy  on  "part.  of  a  tract  of 

land  called,"  &.c.  is  void  for  uncertainty;  cannot  be  set  up  by  matter  de- 

ftorstke  return,  and  a  sale  under  it  passes  no  title. 
But  a  levy  on   "a  tract  of  land  called,"  &c.  under  a  fieri  facias  against  one 

who  was  seized  of  a  part  of  such  tract,  und  a  sale  under  it,  will  pass  his 

interest  to  the  purchaser. 

APPEAL  from  Charles  County  Court.  Ejectment  brought 
by  the  plaintiff  below,  (now  appellant,)  to  recover  "all  that 
tract  or  parcel  of  plantable  land  called  Borough  Hall"  con- 
taining 500  acres  more  or  less.  Defence  was  taken  on  warrant 
by  the  defendant,  (the  appellee,)  under  the  plea  of  not  guilty. 
Issue  was  joined  and  plots  were  returned. 

At  the  trial  the  plaintiff  read  in  evidence  a  certificate  of  sur- 
vey of  Borough  Hall,  made  on  the  4th  of  February  1666,  for 
and  in  the  name  of  Robert  Henley,  containing  500  acres.  Also 
the  following  entry  taken  from  the  Rent  Rolls,  viz.  "500  acres. 
10,  Rent.  Borough  Hall,  surveyed  5th  February  1666,  for 
Robert  Henley,  in  the  woods  near  the  land  formerly  laid  out 
for  Thomas  Harris.  Poss'ors.  350,  William  Courts.  150, 
Samuel  Clagetf."  He  further  proved,  that  William  Cmtrts, 


436  CASES  IX  THE  COURT  OF  APPEALS 

THOMAS  v.  TURVET.— 1827. 

deceased,  was  seized  of  .a  part  of  the  said  tract  of  land  in  his 
demesne  as  of  fee.  That  certain  writs  of  fieri  facias  issued 
from  Charles  county  court  against  the  said  Courts — One  dated 
the  10th  of  May  1819,  on  a  judgment  rendered  in  that  court 
at  the  suit  of  Alexander  Greer-  Another  dated  the  2d  of 
June  1819,  on  a  judgment,  &c.  at  the  suit  of  Horatio  Clagett. 
Another  dated  the  15th  of  July  1819,  on  a  judgment,  &c.  at 
the  suit  of  Rice  and  Neivton.  Another  dated  the  4th  of  Octo- 
ber 1S19,  on  a  judgment,  &c.  at  the  suit  of  Elizabeth  B.  Laid- 
ler.  Another  dated  the  4th  of  October  1819,  on  a  judgment, 
&c.  at  the  suit  of  the  same.  The  plaintiff  then  gave  in  evi- 
dence the  schedule  of  appraisements  and  returns  of  the  sheriff", 
made  upon  the  said  writs  of  fieri  facias.  .  The  schedule  to  the 
jirst,  second,  fourth  and  fifth,  above  mentioned  writs  of  fieri 
facias,  described  the  land  as  seized  and  taken  under  those  writs 
by  the  sheriff,  and  appraised,  &c.  to  be  "part  of  a  tract  of  land 
called  Borough  Hall,  containing  the  supposed  quantity  of  130 
acres  of  land  more  or  less."  The  schedule  to  the  third  above 
mentioned  writ  described  the  land  as  seized,  &c.  to  be  "a  tract 
of  land  called  Burrow  Hall,  containing  130  acres  more  or  less." 
The  sheriff's  returns  to  each  of  the  said  writs  were — "Laid  p. 
schedule,  and  the  lands  and  tenements  sold  to  Zac/tariah 
Thomas  for  $800,"  &c.  The  plaintiff  then  gave  in  evidence 
a  deed  from  the  said  sheriff,  (George  H.  Spalding,)  to  Zacha~ 
riah  Thomas,  the  lessor  of  the  plaintiff,  dated  the  9th  of  No- 
vember 1819,  reciting  the  several  writs  of  fieri  facias  here- 
in before  mentioned;  and  that  in  pursuance  of  the  commands 
therein  contained  the  said  sheriff  laid  the  same  upon  "part  of  a 
tract  of  land  called  Borough  Hall,  being  of  the  lands  and  tene- 
ments of  the  said  William  Courts,  containing  one  hundred 
and  thirty  acres  more  or  less."  That  after  due  notice  being 
given,  &c.  the  said  sheriff  did,  on  the  30th  of  October  1819, 
sell  the  same  to  the  said  Thomas  for  the  sum  of  $800,  &c. 
The  plaintiff  then  proved  all  his  locations  made  by  him  on  the 
plots  returned  in  the  cause.  The  defendant  then  prayed  the 
court,  and  their  instruction  to  the  jury,  that  the  said  schedules 
and  returns  were  not  sufficiently  certain  to  enable  the  plaintiff 
to  recover.  Which  opinion  the  Court,  [Stephen,  Ch.  J.  and 
•Key,  and  Plater,  A.  J.]  gave  to  the  jury.  The  plaintiff  ex- 


OF  MARYLAND.  437 


THOMAS  v.  TunvF.T. — 18-7. 


ceptccl;  and   the  verdict  and  judgment  being  against  him,  he 
appealed  to  this  court. 

The  cause  was  argued  hefore  BUCHANAN,  Ch.  J.  and  EARLE, 
MARTIN,  ARCHER,  and  DORSET,  J. 

Slonestrect,  for  the  Appellant.  1.  The  plaintiff  below,  lo- 
cated on  the  plots  in  the  cause  the  tract  of  land  called  Borough. 
Hall;  and  he  also  located  every  part  thereof  which  had  been  sold 
out,  and  was  net  in  the  possession  of  Courts  at  the  time- the 
writs  of  fieri  facias  were  laid,  leaving  Courts 's  part  of  that 
tract  marked  by  metes  and  bounds;  and  which  is  the  part  taken 
tinder  the  writs  of  fieri  facias.  Of  this  part  Turvey,  the  de- 
fendant, was  tenant  to  Courts.  These  locations  the  plaintiff 
proved — they  were  not  counter-located. 

2.  In  one  of  the  schedules  to  the  writs  of  fieri  facias  offer- 
ed in   evidence,  the  land  is  described — "a  tract  of  land  called 
Borough  Hall."     This,  it  is  contended,  is  sufficiently  certain 
to  enable  the  plaintiff  to  recover. 

3.  The  pra}*cr  to  the  court  below,  as  stated  in  the  bill  of  ex- 
ceptions, was  that  the  schedules  and  returns  were  not  sufficient- 
ly certain  to  enable  the  plaintiff  to  recover.     This  confines  the 
inquiry  of  this  court  to  that  single  question.     And  as  it  is 
manifest  that  one  of  the  schedules  describes  the  land   with  suf- 
ficient certainty,  the  judgment  of  the  court  below  most  be  re- 
versed. 

4.  All  the  other  schedules,  and  each  of  them,  give  a  suffi- 
cient description  of  the  land  seized.     The  reason  why  it  has 
teen  objected  that  "part  of  a  tract  of  land"  is  too  uncertain  is, 
that  the  sheriff  would  not  know  where,  or  on  what  land  to  ex- 
ecute a  writ  of  possession.      In  this  case  no  such  difficulty  would 
occur,  as  the  particular  part  sold  as  William  Courts' s  has  been 
laid   down  on   the  plots  by  metes  and  bounds,  and  is  admitted 
to  be  correctly  located;  which  survey  was  made  at  the  instance 
of  the  defendant,  he  having  taken  his  defence  on  plots.      And 
as  the  part  of  the  tract  seized  under  the  writs  of  fieri  facias •, 
is  distinctly  marked  out  on  the  plots,  a  writ  of  possession  can 
be  executed  without  any  difficulty. 

For  the  principles  contended  for,  he  referred  to  Barney  vs 
Patterson's,  Lessee,  6  Harr.  fy  Johns.  204,  205.  Shep.  Touch. 
249;  and  1  Phill.  Evid.  203. 


438   *  CASES  IN  THE  COURT  OF  APPEALS 


THOMAS  r.  TUUVKV.—  1827. 


Taney,  Mag-ruder,  and  C.  Ztor.sey,  for  the  Appellee,  sub- 
mitted the  case  to  the  court  without  argument.  . 

ARCHER,  J.  delivered  the  opinion  of  the  Court.  The  plain,-  ., 
tiff,  to  show  title  in  himself  in  the  tract  of  land  called  Borpygfo 
Hall,  for  which  the  suit  was  instituted;  and  for  the  purpose  of 
showing  that  the  title  of  William  Courts,  under  vvhom  the  de- 
fendant claimed,  and  in  whom  a  seizin  in  fee  had  been  shown 
in  the  tract  of  land  for  which  the  suit  had  been  brought,  had 
been  divested  by  a  judicial  sale,  produced  in  evidence,  as  one 
of  the  links  in  the  chain  of  his  title,  five  several  writs  of  fieri 
facias,  with  'the  schedules  of  appraisement  and  returns  of  the 
sheriff,  issued  on  judgments  obtained  against  William  Courts. 
The  defendant  prayed  the  court  to  direct  the  jury,  that  the 
schedules  and  return-*  were  not  sufficiently  certain  to  enable  the 
plaintiff  to  recover;  which  direction  the  court  gave.  From  this 
direction  this  appeal  has  been'  taken;  and  our  inquiry  is  solely 
confined  to  the  sufficiency  of  these  schedules  and  returns.. 

Every  schedule,  except  upon  the  third  Jieri  facias,  states  a 
levy  on  part  of  a  tract  of  land  called  Borough  Hall.  At  this 
day  it  would  seem  to  be  unnecessary  to  express  an  opinion  on 
the  insufficiency  of  such  a  levy  and  sale  to  pass  title,  when  the 
doctrine  every  where  throughout  the  state,  has  for  a  long  peri- 
od of  years  corresponded  with  the  decision  of  the  court  below. 
But  it  is  contended  that  there  exists  in  this  case,  that  which  dif- 
fers it  from  ordinary  cases,  and  will  exempt  it  from  the  ope- 
ration of  the  general  rule.  It  is  conceived,  that  because  the 
"plots  identify  the  land  levied  upor  and  sold,  and  are  uncon- 
tradictcd  by  locations,  that  this  circumstance  cures  the  insuffi- 
ciency of  such  a  levy  and  sale;  and  if  the  only  reason  for  such 
an  insufficiency  was  that  which  has  been  stated  by  the  appel- 
lant's counsel,  to  wit,  that  if  a  recovery  was  had  the  sheriff 
would  not  know  upon  what  land  to  execute  the  writ  of  posses- 
sion, it  might  perhaps  be  deemed  sufficient,  inasmuch  as  certain- 
ty is  by  the  admission  of  the  parties  in  their  locations,  given  to 
the  place  sold.  But  that  is  not  the  true  reason.  A  deed  for 
part  of  a  tract  of  land,  designating  the  quantity,  but  without 
any  description  of  the  part  sold,  when  unsupported  by  the  prin- 
ciple of  election,  would  be  void.  The  ambiguity  on  the  face 


OF  MARYLAND.  *  430 


1)  VUNAI.L  f.   MAGKCDEH.—  1827. 


of  the  conveyance  could  not  be  explained  by  extrinsic  circum- 
stances. So  in  this  case  no  title  could  pass  to  a  purchaser  at 
such  sale;  for  the  sheriff's  levy  and  return  would  be  void  for 
uncertainty,  and  could  not,  by  any  possibility,  be  set  up  by  mat- 
ter de  hors  the  return.  The  objection,  therefore,  is  that  no  ti- 
tle passes  by  it,  and  the  plots  in  the  cause,  which  admits  its  lo- 
cation, cannot  aid  or  set  up  what  was  radically  void  and  defec- 
tive a  b  initio. 

But  the  third  schedule  and  return  is  in  the-  usual  form, 
and  was  upon  the  whole  tract  called  Borough  Hall,  for  which 
the  suit  was  brought,  and  was  certain  and  sufficient.  The  court 
below,  therefore,  erred  in  declaring  that  all  the  schedules  and 
returns  were  insufficient  —  this  one  being  good  and  available. 

JUDGMENT  REVERSED,  AJTO  PttOCEDENDO  AWARDED. 


DARNALL'S  Ex'rs.  vs*  MAGKUDER. — June,  1827. 

A  receipt  for  a  sum  of  money  by  winch  the  person  receiving1  it  undertook 
to  return  the  sum  borrowed,  "wlu-n  called  on  to  do  so,"  creates  a  cause 
of  action  from  its  date,  bearing  interest,  and  against  which  the  act  of 
limitations  begins  to  run,  from  that  tlmtf.. 

APPEAL  from  Prince-Gearge^s  County  Court.  Action  of 
assumpsit  brought  on  the  6th'of  April  1822,  for  money  lent 
and  'advanced — money  had  and  received — money  laid  out,  ex- 
pended and  paid,  and  on  an  insimul  eomputassent.  The  de* 
fendant,  (the  appellee,)  pleaded  non  assnmpsity  non  assump- 
sit infra  tres  annos;  and  actio  non  accrevit  infra  tres  annos. 
Issues  joined  on  the  general  replications. 

At  the  trial  the  plaintiffs  gave  in  evidence  the  following  re- 
ceipt signed  by  the  defendant:  "Received,  June  3d,  1807,  of 
Mr.  John  DarnalL  the  sum  of  two  hundred  and  eleven  dol- 
lars, which  I  hereby  engage  to  return  to  him  when  called  on  to 
do  so.  D.  Magruder." 

Whereupon  the  defendant  prayed  the  court  to  instruct  the 
jury,  that  if  they  should  be  of  opinion  from  the  evidence  in  thft 
cause,  that  three  years  hid  elapsed  from  the  date  of  said  paper 
before  the  impetration  of  the  original  writ  in  this  cause,  that 


440  CASES  IN  THE  COURT  OF  APPEALS 

BERRY  v,  GRIFFITH — 1827. 

then  they  must  find  a  verdict  for  the  defendant.  Which  opinion 
and  instruction,  the  Court,  [Stephen,  Ch.  J.  and  Key,  A.  J.] 
gave  to  the  jury.  The  plaintiffs  excepted;  and  the  verdict  and 
judgment  being  for  the  defendant,  they  appealed  to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
and  MARTIN,  J. 

Magruder,  for  the  Appellants,  contended,  that  the  act  of 
limitations  did  not  begin  to  run  from  the  date  of  the  instrument 
of  writing,  nor  until  demand  of  payment.  He  referred  to 
2  Stark.  Evid.  891.  Collins  vs  Benning,  12  Mod.  444.  He 
insisted  that  interest  could  be  claimed  only  from  the  time  de- 
mand was  made  of  the  money  due. 

C.  fiorsey,  for  the  Appellee.  The  action  is  not  on  the  in- 
strument of  writing;  but  is  an  action  of  general  indebitatus  ers- 
sumpsit,  which  admits  that  the  money  was  due  at  the  time 
the  promise  was  made.  He  cited  Bull.  N.  P.  181.  Walrus- 
Icy  vs  Child,  1  Ves.  344.  15  Vin  Jib.  tit.  Limitation,  103, 
pi.  14.  Wallis  vs  Scott,  1  Stra  88. 

THE  COURT.  No  doubt  interest  might  be  demanded  from 
the  date  of  the  instrument  of  writing;  and  of  course  it  became, 
due  and  payable  on  the  day  of  its  date. 

JUDGMENT    AFFIRMED. 


BERRT  vs.  GRIFFITH. — June,  1827. 

The  Court  of  Appeals  will  not  grant  a  rule  on  an  appellant  who  has  remov- 
ed out  of  the  state  since  the  appeal,  to  give  security  for  the  costs  of  suit 

APPEAL  from  Montgomery  County  Court. 

f.  S.  Key,  for  the  Appellee,  moved  the  court  for  a  rule  on 
the  appellant  to  give  security  for  the  costs — The  appellant  hav- 
ing, since  the  appeal  in  this  case,  removed  out  of  the  state,  in- 
to the  District  of  Columbia.  He  filed  an  affidavit,  proving  the 
fact  of  such  removal. 

RULE  REFUSED; 


OF  MARYLAND?  441 


WALL  v.  FORBES.— 1827. 


WALL  vs.  FORBES. — June,  1827* 

A  tract  of  land  may  acquire,  by  reputation,  a  name  different  from  that  which 
it  bears  in  the  patent,  and  may  pass  by  such  acquired  name. 

In  an  action  of  covenant,  where  the  plaintiff  sued  out  a  warrant  of  resur- 
vey,  and  plots  were  returned,  to  establish  his  claim  he  cannot  examine  a 
witness  as  to  the  location  on  such  plots,  who  was  neither  examined  upon 
nor  attended  the  survey. 

APPEAL  from  Prince-George* $  County  Court.  This  wad 
originally  an  action  of  debt,  but  was  afterwards  amended  to 
covenant.  It  was  brought  by  the  appellee,  as  the  survivor 
of  M'Elderry,  on  the  following  instrument  of  writing:  "On 
or  before  the  twentieth  day  of  May  eighteen  hundred  and 
eighteen,  we,  or  either  of  us,  promise  and  oblige  ourselves, 
our  heirs,  executors  and  administrators,  to  pay,  or  cause  to  be 
paid,  to  Geo.  Forbes  and  Horo.  C.  MlElderry,  agents  for  the 
trustees  of  Eliz.  Bond,  their  certain  attorney,  heirs,  executors, 
administrators  or  assigns,  the  full  and  just  sum  of  ten  dollars 
per  acre  for  one  hali  of  a  tract  of  land  known  by  the  name  o£ 
Timber  Neck,  and  supposed  to  contain  in  the  whole  three  hun- 
dred acres,  with  legal  interest  thereon  from  the  20th  of  No- 
vember 1817,  it  being  for  value  received.  As  witness  our 
hands  and  seals  this  1st  of  December  1817. 

Jno.  B.  Thomas,  (Seal.) 
John  T.  Wall,  (Seal.) 

Witness, — Charles  S.  JFeems.)} 

The  declaration  averred  that  the  said  tract  of  land  contained 
in  the  whole  300  acres,  and  that  the  one  half  contained  150 
acres.  That  the  amount  due  from  the  defendant  to  the  plaintiff 
for  the  one  half,  &c.  amounted  in  the  aggregate  to  $1500,  with 
interest,  &c.  which  the  defendant  had  not  paid,  &c.  The  de- 
fendant pleaded,  L  That  the  plaintiff  at  the!  time,  &c.  had 
nothing  in  the  land,  whereof  he  could  make  sale,  &c.  2.  That 
the  tract  contained  three  acres  and  no  more;  without  that,  that 
the  same  contained  300  acres,  &c.  3.  Payment  of*  the  money 
he  was  bound  to  pay.  Replications.  To  the  first  plea,  demur- 
rer, and  joinder.  To  the  second,  that  the  tract  contained  300 
acres,  and  not  three  acres,  &c.  Issue  joined.  To  the  third  plea, 
nonpayment,  &c.  Issue  joined.  A  warrant  of  resurvey  issued, 
and  plots  were  made.  Verdict  for  the  plaintiff  on  the  issues  ii$ 
fact.  Demurrer  overruled  on  the  issue  in  law. 
voi.  i*  56 


442  CASES  IN  THE  COURT  OF  APPEALS 

WALL  v.  FOHBES. — 1827. 

At  the  trial  the  plaintiff  read  in  evidence  the  covenant  upon 
which  this  suit  was  brought  as  herein  before  mentioned.     He 
also  read  in  evidence  the  plots  and  explanations  in  this  cause. 
The  plaintiff  then  claimed  to  be  paid  $10,  per  acre,  for  all  the 
land  which  upon  the  plots  filed  is  comprehended  within  the  fol- 
lowing lines:  Beginning  at  black  D,  and  running  thence  the 
lines  shaded  blue  1,  2,  3,  &c.  and  which  is  described  in  the  ex- 
planations as  the  land  for  which  the  trustees  of  Elizabeth 
Bond  bring  suit  against  John  T.  Wall,  &c.     And  for  the  pur- 
pose of  showing  that  under  the  issues  in  this  cause,  and  upon 
the  plots  filed  in  it,  they  are  entitled  to  recover  at  the  rate  of 
$li),  per  acre,  for  all  the  land  described  and  located  as  afore- 
said, beginning  at  black  7),  and  running  the  blue  shaded  lines, 
and  which  is  alleged  in  the  explanations  to  contain  272  acres, 
offered  to  prove  by  witnesses  sworn  in  the  cause,  that  the  land 
included  within  the  said  lines  as  aforesaid  had  long  been  known 
by  the  name  of  Timber  Neck,  and  that  the  covenant  aforesaid 
related  to  said  land  comprehended  within  the  lines  aforesaid, 
and  not  to  the  tract  of  land  located  by  him  on  the  plots  by  the 
name  of  Timber  Neek.     And  offered  to  give  in  evidence  that 
the  land  embraced  within  the  lines  aforesaid  had  been  known, 
long  prior  to  the  date  of  the  said  covenant,  as  Timber  Neck, 
and  that  by  virtue  and  under  the  said  contract  the  defendant 
entered  on  the  lands  embraced  within  the  said  lines,  and  occu- 
pied it  as  Timber  Neck.     To  the  admission  of  any  such  parol 
testimony  for  such  purposes,  the  defendant  objected,  and  con- 
tended that  upon  the  issues,  plots  and  explanations,  in  this  cause, 
such  testimony  could,  not  be  admitted  to  prove  that  the  con- 
tract related  to  any  land  not  located  on  the  plots  by  the  name 
of  Timber  Neck.     But  the  Court,  \Key^  A  J.]  overruled  the 
said  objection,  and  was  of  opinion  that  the  whole  of  said  testi- 
mony offered  by  the  plaintiff  was  admissible,  and  permitted 
every  part  of  it  to  be  given  in  evidence  to  the  jury;  and  ac- 
cordingly the  same  was  given  to  the  jury.     The  defendant  ex- 
cepted.      Judgment  on  the  verdict  for  the  plaintiff,  and  the*, 
defendant  appealed  to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EABLE, 
and  MARTIN,  J. 


OF  MARYLAND.  443 


WAIA  v.  FORBES.— 1827 


Magruder  and  Stonestreet,  for  the  Appellant.  1.  If  such 
parql  proof  could  have  been  admitted  at  all,  yet  the  plaintiff 
below,  in  order  to  offer  such  proof,  ought  to  have  located  the 
land  as  the  tract  of  land  called  or  known  by  the  name  of  Tim- 
ber Neck,  and  not  having  done  this,  could  not  offer  proof  that 
it  was,  what  he  attempted  to  prove  it  to  be,  Timber  Neck. 
2.  No  such  parol  proof  was  admissible  to  explain  or  add  to  the 
written  contract  3.  Parol  proof  that  the  covenant  related  to 
the  said  land,  and  not  to  the  tract  called  Timber  Neck,  is  utter- 
ly inadmissible.  4.  The  action  could  not  be  amended  from, 
debt  to  covenant. 

To  show  that  parol  evidence  was  not  admissible,  they  citetl 
Batturs  vs  Sellers  $  Patterson,  6  Harr.Sf  Johns.  249.  1  Phill. 
Evid.  412,414.  That  the  writ  could  not  be  amended  they  re- 
ferred to  the  act.  of  1809,  ch.  153j  and  Stoddert  vs  Newman, 
1  Harr.  Sf  Johns.  251. 

C.  Dorsey,  for  the  Appellee.  Certainty  in  pleading  is  ne- 
cessary. 1  C  kitty's  Plead.  235.  The  plots  in  the  cause  are 
a  part  of  the  pleadings,  and  this  case  must  be  assimilated  to  an 
action  of  ejectment.  A  tract  of  land  may  acquire  a  name  by 
reputation.  Bench  vs  Beltzhoover,  3  Harr.  Sf  Johns.  469.  The 
contract  was  for  the  sale  of  Timber  Neck,  and  it  appears  that 
certain  tracts  of  land  had  acquired  that  name  by  reputation; 
and  parol  evidence  is  admissible  to  prove  that  fact.  It  is  a 
latent  ambiguity. 

The  defendant  below  waived  his  right  to  take  advantage  of 
the  writ  and  declaration  being  amended  from  debt  to  covenant, 
by  pleading  to  the  amended  declaration.  Boats  vs  Edwards, 
Doug.  227. 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  Court.  There 
is  no  doubt  that  a  tract  of  land  may  acquire,  by  reputation,  a 
name  different  from  that  which  it  bears  in  the  patent,  and 
may  pass  by  such  acquired  name.  But  that  does  not  appear  to 
be  a  point  before  us. 

The  contract,  on  which  the  suit  was  brought,  relates  to  a  tract 
of  land  called  Timber  Neck.  A  tract  of  that  name  is  located 
on  the  plots  returned  in  the  cause,  with  three  others,  Wood's 
j  LudfordSs  Hope,  and  Anderson's  Chance;  then  there  is 


444      CASES  IN  THE  COURT  OF  APPEALS 

1  • 
WILLIAMSON  D.  DILLON. — 1827. 

a  location  carved  out  of  those  four  tracts,  which  is  described  on 
the  plots,  as  being  "Par/  of  Timber  Neck,  Part  of  Wood's 
Joy,  Part  of  Ludford's  Hope,  and  \ftndersorfs  Chance-"  and 
to  prove  that  they  together,  as  so  located,  had  long  been  known 
by  the  name  of  Timber  Neck,  and  constituted  the  subject  of 
the  contract,  and  not  the  land  located  on  the  plots  by  the  name 
of  Timber  Neck}  witnesses  were  offered  and  admitted  by  the 
court  below,  who  do  not  appear  from  the  statement  in  the  bill 
of  exceptions,  to  have  been  on  the  survey.  And  the  question 
presented  is,  whether  under  such  circumstances  such  testimony 
ought  to  have  been  received?-  And  we  think  it  should  not.  As  a 
general  rule,  a  person  who  has  neither  been  examined  upon, 
nor  attended  a  survey,  is  not  a  competent  witness  to  give  evi- 
dence at  the  trial  of  a' cause  in  relation  to  the  locations  made 
upon  the  plots;  and  we  can  perceive  nothing  set  out  in  the  bill 
of  exceptions,  to  take  this  case  out  of  the  rule.  Nor  do  we 
mean  to  be  understood  as  deciding  the  question,  whether  to 
render  a  witness  competent  at  the  trial,  he  must  have  been 
sworn  on  the  survey;  which  is  not  necessary  to  be  decided  in 
this  case. 

JUDGMENT  REVERSED,  AND  PROCEDENDO  AWARDED, 


WILLIAMSON  vs.  DILLON. — June,  1827. 

On  the  25th  of  January  1817,  D  agreed  with  W,  under  seal,  to  deliver  to 
him  or  order  at  Z,  250  barrels  of  flour,  not  less  than  l-3d  of  which  to 
pass  as  fine  quality,  the  remaining1  2-3ds  of  superfine,  to  be  at  said  place 
by  the  1st  of  March  then  next,  to  be  lined  and  in  good  shipping  order; 
and  to  deliver  on  the  15th  of  the  same  month  250  barrels  of  flour  ef 
same  quality  as  the  first  mentioned  quality,  and  in  like  order,  to  W,  or 
order,  at  the  above  named  place;  for  which  flour,  on  its  delivery  as  above, 
\V  bound  himself  to  pay,  &c.  In  an  action  of  covenant  on  this  contract 
the  breach  assigned  being  that  the  flour  whf  n  delivered  was  sour,  com- 
mon, inferior,  and  of  bad  quality,  and  not  in  good  shipping  order,  and 

would   not   and  did   not   pass  inspection  as  fine  or  superfine. Held, 

that  the  inspection  was  no  part  of  the  contract,  as  it  related  to  the  time 
and  place  of  delivery,  but  <jnly  the  evidence  or  test  by  which  it  wai 
agreed  the  quality  of  the  flour  should  be  ascertained;  that  the  moment 
the  stipulated  time  for  the  delivery  of  the  flour  had  passed,  the  contract 
Was  either  performed  or  broken,  and  it  was  only  necessary  to  carry  it  to 
a  place  for  inspection,  to  furnish  evidence  of  its  quality;  and  'hat  the  dif* 
tfereaco  of  price  at  Z,  at  the  time  stipulated  for  its>  delivery,  between  the 


OF  MARYLAND.  445 


WILLIAMSON  ».   DILLON. — 1827. 


flour  delivered  and  that  contracted  for,  was  the  true  measure  of  the 
plaintiff's  damages  in  this  case. 

In  an  action  on  an  agreement  to  deliver  a  specific  article,  at  a  particular 
time  and  place,  to  be  paid  for  at  the  time  of  the  delivery,  the  measure 
of  damages  is  the  same,  whether  brought  for  a  nondelivery,  or  a  delivery 
of  a  different  quality  from  that  contracted  for.  The  value  of  such  article 
at  the  time  and  place  of  delivery,  is  the  true  measure;  .unless  where  the 
contract  showed  it  was  for  a  particular  purpose,  and  special  damages  were 
laid  in  the  declaration. 

In  proving  the  relative  prices  of  different  qualities  of  flour  at  Z,  in  1817, 
other  testimony  is  admissible  than  direct  positive  proof  from  a  witness 
who  knew  the  value  at  that  place;  in  the  absence  of  such  positive  proof 
the  jury  may  infer  such  value,  from  proof  of  the  price,  of  each  kind  of 
flour  in  1817,  at  other  places  in  the  neighbourhood  of  Z,  and  at  N  O,  a 
port  to  which  flour  was  commonly  sent  from  Z,  for  inspection  and  sale; 
and  this  latter  species  of  evidence,  which  is  admissible  for  the  above  pur- 
pose,  is  not  secondary,  though  of  a  less  conclusive  character  than  dircfft 
proof. 

Where  it  was  doubtful,  from  the  want  of  care  in  drawing  a  bill  of  excep- 
tions, whether  the  whole  testimony  of  a  witness  was  hearsay,  part  of  it 
being  unquestionably  so,  the  appellate  court  made  a  comparison  of  the 
several  parts  of  the  testimony,  and  determined  the  whole  to  be  hearsay, 
and  therefore  incompetent. 

Information  received  by  one  partner,  the  witness,  from  his  copartner,  of  the 
price  of  merchandize  purchased  by  him  ai  Z,  for  which  the  witness  knew 
that  his  house  at  B,  where  he  resided,  paid  at  the  price  mentioned,  is 
but  hearsay  evidence  of  the  price  of  such  merchandize  at  Z. 

"Where  a  witness  in  his  answer  taken  under  a  commission  declared,  "that 
lie  was  called  on  in  the  spring  of  the  year  1817,  to  state  the  difference 
usually  allowed  on  the  sale  of  flour  between  superfine,  fine,  &.c.  that  he 
then  stated  the  difference  was  as  follows,"  &c  — Held,  that  this  might  be 
true,  an  i  \  t  the  witness  have  no  knowledge  of  the  facts;  his  declaration 
being,  that  he  made  the  statement,  and  not  that  it  was  true.  Such  tes- 
timony is  not  admissible  in  evidence. 

APPEAL  from  Baltimore  County  Court.  Action  of  cove- 
nant, brought  by  the  appellant,  (the  plaintiff  below,)  who  de- 
clared against  the  appellee,  (the  defendant,)  fora  breach  of  the 
covenant  hereinafter  mentioned.  The  breach  assigned  was, 
that  the  defendant  did  not  deliver  500  barrels  ot  flour  to  pass 
l-3d  as  fine  quality,  and  the  remaining  2-3ds  as  superfine,  lined 
and  in  good  shipping  order;  but  that  on  the  contrary  thereof 
the  said  flour  when  delivered  was  sour,  common,  inferior,  and 
of  bad  quality,  and  not  in  good  shipping  order,  and  would  not 
and  did  not,  nor  did  any  part  thereof  pass  inspection,  as  fine 
or  superfine,  according  to  the  said  covenant;  and  so,  &c.  The 
defendant  pleaded  performance^  on  which  plea,  issue  was  joined, 


446      CASES  IN  THE  GOUHT  OF  APPEALS 

WILLIAMSON  v.   DILLON. — 1827. 

1.  At  the  trial  the  plaintiff  offered  in  evidence  the  contract 
executed  between  the  plaintiff  and  defendant,  bearing  date  on 
the  5th  of  January  1817,  which  here  follows:  "Zanesville, 
Ohio.  Memorandum  of  an  agreement  made  and  entered  into 
.this  twenty- fifth  day  of  January  1817,  between  Moses  Dillon, 
of  Zanesvilie?  state  of  Ohio,  and  David  Williamson  of  Bal- 
timore, state  of  Maryland,  whereby  the  said  Moses  Dillon 
obligates  and  binds  himself  to  deliver  to  the  said  Williamson, 
or  order,  at  Zanesvillc,  two  hundred  and  fifty  barrels  of  flourr 
not  less  than  one- third  of  same  flour  to  pass  as  fine  quality,  the 
remaining  two-thirds  of  superfine,  to  beat  said  place  by  the 
first  day  of  March  next,  to  be  lined  and  in  good  shipping  or- 
der; and  to  deliver,  on  the  15th  of  same  month,  two  hundred 
and  fifty  barrels  of  flour  oi  same  quality  as  the  first  mentioned 
quality,  and  in  like  order,  to  the  said  Williamson)  or  order,  at 
the  above  named  place,  for  which  flour,  on  its  delivery  as  above, 
the  said  David  Williamson,  Jr.  binds  and  obligates  himself  to 
pay  to  the  said  Moses  Dillon,  or  order,  the  sum  of  Steven  dol- 
lars per  barrel,  for  which  flour  payment  will  be  made  to  the 
said  Dillon  with  his  bonds  passed  to  Luke  Tiernan  and  Ken- 
nedy Owen,  of  Baltimore,  interest  being  added  in  said  bond 
to  the  day  of  the  delivery  of  said  flour  at  the  par  of  exchange. 
In  testimony  whereof  we  have  hereunto  set  our  hands  and  seals 
this  day  and  year  above  written. 

Moses  Dillon,  (Seal.) 

D.  Williamson,  Jr.    (Seal.) 

Signed,  sealed  and  delivered,  in  the  presence  of  Isaac  Dil- 
lon." 

And  also  gave  in  evidence,  that  the  plaintiff  was  at  the 
time  of  the  making  and  executing  of  the  said  contract,  a  mer- 
chant residing  in  the  city  of  Baltimore,  and  the  defendant  was 
the  owner  of  a  mill  near  Zanesville,  in  the  state  of  Ohio,  and 
that  New-  Orleans  was  the  great  mart  for  the  flour  on  the  Mis- 
sissippi, and  its  tributary  waters.  And  the  plaintiff  further  of- 
fered in  evidence,  that  the  trade  in  flour  in  the  neighbourhood 
of  Zanesville  was  then  in  its  infancy,  and  that  when  flour  was 
intended  for  New-Orleans,  it  was,  according  to  the  course  of 
the  flour  trade  in  the  Mississippi,  and  its  tributary  waters,  to 
inspect  flour  at  New-Orleans,  when  there  was  no  public  inspec- 


OF  MARYLAND.  447 


WILLIAMSON  w.  DILLON.  — 1827. 


tion  of  flour  at  the  place  where  it  was  loaded  in  the  boats  in- 
tended to  convey  it  down  the  river,  and  that  on  its  passage 
down  the  river  flour  is  never  taken  out  of  the  boat  to  be  in- 
spected before  it  arrives  at  New-Orleans,  when  destined  for 
New-Orleans.    And  also  offered  in  evidence  the  depositions  of 
sundry  witnesses,  and  other  proceedings  taken  and  had   under 
commissions  for  that  purpose  issued  out  of  the  said  court  to 
certain  commissioners  of  Zanesville,  in  Muskingum  county, 
in  the  state  of  Ohio,  and  of  the  city  of  New-Orleans,  in  the 
state  of  Louisiana.     That  part  of  the  testimony  which  seems 
necessary  to  be  stated,  (it  being  admitted  by  the  parties  that  the 
said  commissions  had  been  regularly  executed,)  is  that  of  Isaac 
Dillon,  the  subscribing  witness  to  the  contract,  who  proved  its 
execution.     Also  that  of  Maunsel  White,  of  the  city  of  New- 
Orleans,  in  answer  to  the  third  interrogatory  propounded  to 
him  by  the  plaintiff,  who  proved  ''that  he  was  called  upon  in 
the  spring  of  the  year  1817  by  Richard  Relf,  to  state  the  dif- 
ference usually  allowed  on  the  sale  of  flour,  between  superfine, 
fine,  common  and  middling:  that  he  then  stated  that  the  diffe- 
rence was  as  follows:  that  two-thirds  superfine  and  one-third 
fine,  was  the  proportion  established  as  merchantable;  that  when 
merchantable  flour  is  worth  twelve  dollars  a  barrel,  fine  is  only 
worth  eleven,  and  middling  and  common  worth  eight.     That 
when  merchantable  flour  is  worth  eight  dollars  a  barrel,  fine  is 
only  worth  seven,  and  middling  and  common  six,  and  so  in 
proportion."  Also  that  of  "  William  Ross,  of  the  city  of  New- 
Orleans,  of  full  age,  being  produced,  sworn  and  examined,  on 
the  part  of  the  plaintiff  in  this  cause,  deposeth  as  follows:  1. 
To  the  first  interrogatory  on  the  part  of  the  plaintiff  he  an- 
swers, that  he  knows  neither  of  the  parties.    2.  To  the  second 
interrogatory  on  the  part  of  the  plaintiff  he  answers,  that  in 
May  1817  he  inspected  a  boat  load  of  flour,  amounting  to  four 
hundred  and  ninety-nine  barrels,  said  to  be  from  Putnam,  in. 
the  state  of  Ohio,  brought  to  the  city  by  captain  Tarrier,  and 
consigned  to  John  C.  Wederstrandt,  Esq.  who  being  absent, 
the  flour  was  delivered  to  Richard  ReJf,  Esq.  by  whom  this 
deponent  was  called  to  inspect  it.      3.   To  the  third   interroga- 
tory on  the  part  of  the  plaintiff  he  answers,  that  the  report  of 
the  inspection  was  as  follows:  Eighty-three  barrels  fine,  three 


448  CASES  IN  THE  COURT  ©P  APPEALS 

WILLIAMSON  v.   DILLON — 1827. 

hundred  and  ninety-nine  common,  sixteen  middling,  and  one 
condemned.  4..  To  the  fourth  interrogatory  on  the  part  of  the 
plaintiff  he  answers,  that  the  flour,  except  the  condemned  bar- 
rel, did  not  appear  to  have  been  at  all  injured  in  its  passage 
down  the  river,  but  its  bad  quality  was  owing  to  its  having 
been  b;idly  manufactured.  5.  To  the  fifth  interrogatory  on 
the  part  of  the  plaintiff  he  answers,  that  he  was  commissioned 
by  James  Villere,  governor  of  the  state  of  Louisiana,  on  the 
1st  day  of  January  1816."  The  defendant  then  offered  in  evi- 
dence the  depositions  taken  under  one  of  the  said  commissions 
at  -Zanesville;  and  he  also  offered  in  evidence,  that  in  the  year 
1817  New-Orleans  was  the  principal  port  to  which  flour,  that 
passed  the  falls  of  the  Ohio,  was  carried,  but  that  it  was  some- 
times sold  at  other  places,  when  it  was  discovered  that  the.  New- 
Orleans  market  was  not  a  favourable  one;  and  that  boats  em- 
ployed in  the  transportation  of  flour,  ultimately  destined  for 
New-Orleans,  were  in  the  habit  of  calling  at  various  places  on 
the  Ohio  and  Mississippi,  such  as  Cincinnati,  Louisville  and 
Notches,  when  the  owner  or  agent  was  on  board,  for  the  purpose 
of  trying  the  market  at  these  several  places,  and  were  govern- 
ed on  the  further  prosecution  of  their  voyage  to  New-Orleans 
by  the  state  of  the  market  at  the  said  places.  And  thereupon 
the  court,  upon  the  prayer  of  the  plaintiff,  gave  the  following 
instructions  and  directions  to  the  jury:  If  the  jury  believe  from, 
the  evidence  that  there  was  no  public  inspection  of  flour  at 
Zanesville,  then  the  plaintiff  had  a  right  to  take  the  flour  to 
any  port  or  place  on  the  Ohio  or  Mississippi  rivers,  where 
there  was  a  public  inspection  of  that  article,  provided  in  so  doing 
he  did  not  take  it  to  an  unusual  port  or  place  lor  the  inspection 
of  flour,  descending  from  Zanesville;  and  if  they  believe  the 
flour  was  inspected  at  New-Orleans,  that  New-Orleans  was  the 
great  mart  for  the  flour  of  the  country  on  the  Muskingum% 
and  that  flour,  sold  at  any  port  or  place'  on  the  Muskingum 
where  there  was  no  public  inspection,  was  not  usually  inspected 
at  any  intermediate  port  between  such  place  and  New-Orleans, 
and  that  this  was  generally  known  to  the  dealers  in  flour  OB 
said  river  at  the  time  the  contract  in  this  cause  was  executed, 
that  then  the  jury  might  infer  that  New-Orleans  was  not  an 
Unusual  place  for  the  inspection  of  flour  descending  from  Zanes- 


OF  MARYLAND.  449 


WlLLIAMSOX  V.  DlLLOIT. — 1827. 


ville.  And  furthermore,  if  the  jury  believe  that  the  flour  was 
not  taken  to  an  unusual  place  for  inspection,  that  the  defendant 
in  that  event  took  the  risk  of  inspection;  and  if  it  does  not  at 
such  place  pass  in  quality  such  as  the  contract  has  stipulated^ 
then  the  plaintiff  is  entitled  to  a  fair  indemnity  for  the  diffe- 
rence in  value  of  the  flour  as  delivered  and  inspected,  and  the 
flour  contracted  to  be  delivered.  The  plaintiff  then  prayed  the 
opinion  and  instruction  of  the  court  to  the  jury,  that  if  the 
jury  find  from  the  evidence  that  New-Orledns  Was  a  usual 
and  proper  place  for  the  inspection  of  flour  delivered  at  Zanes- 
ville,at  the  time  of  the  delivery  of  the  flour  in  question;  and  if 
they  also  find  that  the  flour,  when  inspected  at  Neiv-Orleans, 
was  of  interior  quality  j  and  of  less  value,  as  is  stated  in  the  depo- 
sition of  William  Ross,  the  flour  inspector  at  New-Orleans,  iu 
one  of  the  commissions  herein  before  mentioned,  than  the  flour 
contracted  to  be  delivered,  that  then  the  measure  of  damages 
is  the  difference  in  value  at  New-Orleans,  at  the  time  of  the  in- 
spection, between  the  flour  contracted  to  be  delivered,  and  the 
flour  in  question  as  passed  by  the  inspector.  Which  opinion 
and  instruction  the  Court,  [tfrcher,  Ch.  J.  and  Hanson,  and 
Ward,  A.  J.]  refused  to  give;  but  instructed  the  jury,  that  ac- 
cording to  the  fair  construction  of  this  contract,  the  proper 
measure  of  damages  is  the  difference  in  value  at  Z .'nesville  be- 
tween the  flour  stipulated  to  be  delivered,  and  that  which  was 
delivered  at  the  time  the  flour  was  by  the  contract  to  be  de* 
livered.  The  plaintiff  excepted. 

2.  The  plaintiff  then  offered  to  prove  by  a  competent  wit- 
ness, that  at  the  time  of  the  contract  in  question,  and  of  the  de- 
livery of  the  flour,  and  of  the  inspection  at  New-Orleans,  the 
market  price  at  New-Orleans  regulated  the  price  of  superfine, 
fine,  and  common  flour,  on  the  Mississippi  and  the  Ohio,  at  all 
the  places  with  which  he  was  acquainted,  and  also  the  relative 
value  of  such  flour;  and  also  that  the  witness  was,  at  the  times 
above  mentioned,  well  acquainted  with  the  ftbur  trade  on  the 
Mississippi  and  the  Ohio,  but  had  not  at  those  times  any  ac- 
quaintance at  Zanesville,  or  with  the  flour  trade  oh  the  Musk- 
inguni  above  Marietta;  that  the  witness  has  no  knowledge  of 
the  prices  or  relative  value  of  flour  at  Zanesville  itself,  but  that 

VOL.  i.  57 


430  CASES  IN  THE  COURT  OP  APPEALS 

WILLIAMSON  v.  DILLON. — 1827. 

at  the  times  above  mentioned  he  was  acquainted  with  the  flour 
trade  at  Marietta,  and  up  the  Ohio  to  Pittsburgh  and  there 
was  not  the  difference  throughout  that  course  of  more  than  six 
cents  or  12£  cents  per  barrel  for  flour  at  any  of  the  above  places, 
if  it  were  of  the  same  quality;  that  at  the  times  above  mention- 
ed, flour  at  Marietta,  which  would  not  pass  inspection  as  fine, 
was  of  no  value  for  exportation,  and  was  not  saleable  for  that 
purpose;  that  Marietta  and  Zanesville,  are  both  situated  on  the 
Muskingum  river,  Marietta  at  its  mouth,  and  Zanesville  a- 
bout  sixty  miles  higher  up;  that  the  price  of  merchantable  flour, 
at  the  times  above  mentioned,  at  Marietta,  was  at  least  six 
dollars  or  upwards;  and  by  merchantable  flour,  the  witness 
means  flour  two-thirds  superfine  and  one-third  fine.  The  plain- 
tiff offered  in  evidence,  by  another  competent  wjtness,  that  in 
1S17  he  resided  in  the  western  country  at  Steubenville,  and 
was  acquainted  with  the  prices  of  flour  from  Louisville  to 
Pittsburg,  and  with  the  relative  prices  which  it  bore  at  diffe- 
rent places  on  the  OAi'0,but  not  off  the  Ohio, and  not  at  Zftnes- 
ville-,  but  at  this  time  cannot  State  the  prices  at  any  of  those 
places;  that  the  buyers  made  their  purchases,  and  were  regulat- 
ed in  their  prices  by  the  prospects  at  New-Orleans;  and  that 
it  was  the  usage  in  the  places  above  mentioned  to  settle  any 
damages  for  deficiency  in  quality,  when  the  flour  was  to  be  in- 
spected in  Orleans,  by  the  Orleans  prices;  that  whenever  there 
was  no  inspection  at  the  place  where  the  flour  was  put  on  board 
the  boats,  it  was  usual  for  the  flour  to  be  inspected  at  Orleans. 
To  the  admissibility  of  which  evidence  the  defendant  objected. 
And  the  court  were  of  opinion  that  the  same  was  not  admissi- 
ble to  prove  the  relative  value  of  superfine,  fine,  and  common 
flour  at  Zanesville,  and  was  not  evidence  which  the  jury  were 
entitled  to  consider  in  ascertaining  the  damages  which  the  plain- 
tiff had  sustained  by  the  breach  of  the  contract  in  this  case;  but 
that  in  order  to  furnish  a  standard  of  damages  in  this  case,  the 
plaintiff  is  bound  to  prove  the  value  at  Zanesville  of  the  flour 
which  the  defendant  contracted  to  deliver,  and  the  relative 
value  of  that  which  was  delivered  at  that  place  at  that  time; 
and  thereupon  refused  to  suffer  the  said  evidence,  or  any  part 
thereof,  to  be  given  to  the  jury  for  the  purpose  aforesaid.  The 
plaintiff  excepted. 


Olf  MARYLAND.  451 

WILLIAMSON  v.  DILLON. — 1827. 

3.  The  plaintiff  then  prayed  the  opinion  of  the  court,  that 
in  the  absence  of  all  proof  as  to  the  relative  prices  of  superfine 
flour,  fine  flour,  and  common  flour,  at  Zanesville,  or  at  any 
other  place  on  the  Muskingum  river,  except  Marietta,  the 
jury  may,  in  estimating  the  damages  of  the  plaintiff  in  thie 
cause,  take  into  consideration  the  relative  value  of  the  above 
mentioned  qualities  of  flour  at  Marietta,  it  being  the  nearest 
point  to  Zanesville  mentioned  in  the  testimony.  Which  opinion 

the  court  refused  to  give.     The  plaintiff  excepted. 

I 

4.  Upon  the  above  evidence  given  as  stated  in  the  first  bill 
of  exceptions,  the  plaintiff  prayed   the  opinion  of  the  court, 
that  in  the  absence  of  all  proof  as  to  the  relative  value  of  su- 
perfine flour,  fine  flour,  and  common  flour,  at  Zanesville,  or  at 
any  other  place  on  the  MusJdngum  river,  except  Marietta* 
the  jury  may,  in  estimating  the  damages  of  the  plaintiff  in  this 
cause,  take  into  consideration  the  relative  value  of  the  above 
mentioned  qualities  of  flour  at  New-Orleans,  with  a  proper  al- 
lowance for  the  expenses  and  risk  of  transportation  to  New- 
Orleans    Which  opinion  the  court  refused  to  give.   The  plain,- 
tiff  excepted. 

5.  The  plaintiff  further  offered  in  evidence  by  a  witness,  that 
he  purchased  flour  at  Zanesville  in  the  spring  of  1817,  and  paid 
for  it  from  six  to  eight  dollars  per  barrel;  and  that  the  witness, 
at  , the  time  above  mentioned,  was  engaged  in   shipping  flour 
from  the  waters  of  the  Mississippi  and  Ohio,  and  is  acquaint;- 
ed  with  the  flour  trade  in  those  waters;  and  that  in  the  opinion 
of  the  witness,  no  merchant  acquainted  with  the  said  trade 
would  purchase  for  exportation  at  Zanesville,  flour  that  would 
not  pass  inspection  as  merchantable  flour,  provided  he  knew  it 
would  not  pass.     That  the  witness  paid  for  the  freight  of  flour 
-from  Zanesville  to  New-Orleans  two  dollars  per  barrel;  that 
the  witness  was  not  in  the  Western  Country  in  the  spring  of 
the  year  1817,  and  did  not  make  the  purchases  he  has  mention* 
ed,  in  person,  but  that  some  of  the  said  purchases  were  made 
by  the  partner  of  the  witness,  and  that  some  of  them  were 
made  by  his  brother,  as  agent  for  the  mercantile  house  of  which 
the  witness  then  was  a  partner,  and  that  all  the  information  of 
the  witness  of  the  facts  of  the  purchases  which  he  has  mention* 


452       CASES  IN  THE  COURT  OP  APPEALS 

WILLIAMSON  v.   DILLON. — 1827. 

ed  is  derived  from  his  said  partner  and  brother,  who  are  both 
living;  but  that  the  witness  knows  that  his  house  paid  for  the 
flour  above  mentioned,  and  lor  other  flour  purchased  at  other 
places  on  the  Western  waters,  at  the  prices  above  mentioned, 
and  which  prices  were  stated  to  him  by  his  said  partner  and 
brother  as  being  the  prices  which  they  had  contracted  to  give 
ior  the  said  flour-  The  defendant  objected  to  the  admissi- 
bility  of  the  said  evidence.  And  the  court  were  of  opinion, 
that  the  said  evidence  was  not  admissible  to  prove  the  re- 
lative value  at  Zanesville  of  superfine,  fine,  and  common 
flour,  and  was  not  evidence  which  the  jury  were  entitled  to 
consider  in  ascertaining  the  damages  which  the  plaintiff  had 
sustained  by  the  breach  of  the  contract  in  this  case;  but  that 
in  order  to  furnish  a  standard  of  Damages  in  this  case,  the 
plaintiff  is  bound  to  prove  the  value  at  ganesville  of  the  flour 
which  the  defendant  contracted  to  deliver,  and  the  relative  va- 
lue of  that  which  was  delivered  at  that  place  at  that  time;  and, 
thereupon  refused  to  suffer  the  said  evidence-,  or  any  part  there- 
of, to  be  given  to  the  jury  for  the  purpose  aforesaid.  The 
plaintiff  excepted. 

6.  The  plaintiff  then  offered  to  read  in  evidence  that  part  of 
the  deposition  of  Maunsel  IFhite,  which  is  contained  in  hia 
answer  to  the  third  interrogatory.     To  the  admissibility    of 
tvhich  evidence  the  defendant  objected.     And  the  court  were 
of  opinion  that  the  said  statement  contained  in  the  said  answer 
was  inadmissible  evidence,  and  refused   to  let  the  same   go  to 
the  jury.     The  plaintiff  excepted. 

7.  The  plaintiff  then,  in  addition  to  the  evidence  above  stat- 
ed, offered  to  prove  by  a  competent  witness,  that  the  witness 
purchased  flour  on  the  Mississippi  in  the  spring  of  1817;  that 
the  said  flour  was  sold  in  New-Orleans  in  the  spring  of  that 
year;  that  part  of  the  said  flour  was  part  superfine,  and  part 
common;  that  the  difference  in  price  between   superfine  and 
fine  was  one  dollar  per  barrel,  and  the  difference  between  su- 
perfine and   common  was  four  dollars  per  barrel;  that  witness 
was  not  in  New-Orleans  himself  at  the  time  when  the  sales 
"were  made;  he  knows  that  his  house  received  payment  for  flour 
fold  in  Neiu-Orleans,  at  the  relative  prices  above  mentioned, 


OF  MARYLAND.  453 


WILLIAMSON  t'.  DILLON. 


at  the  time  above  stated;  that  the  said  sales  were  made  by  the 
partner  of  the  witness,  and  the  accounts  were  rendered  of  the 
sales  in  the  manner  and  at  the  prices  above  stated;  that  the 
witness  had  no  personal  agency  in  making  either  the  said  sales 
or  purchases,  or  any  of  them,  having  himself  been  residing  all 
along  in  Baltimore,  and  that  the  ;ibove  statement  is  made  en- 
tirely on  the  information  of  his  partner,  and  the  agents  of  the 
house  who  resided  in  New-Orleans,  and  transacted  the  business, 
his  said  partner  being  still  living.  The  said  sales  were  made 
by  agents  of  the  house  under  the  immediate  direction  of  the 
partner  of  the  witness,  as  he  was  informed  by  his  said  partner, 
and  the  accounts  of  which  witness  speaks,  were  rendered  by 
euch  agents,  and  received  by  the  witness  from  Hs  said  partner. 
To  the  admissibility  of  which  testimony  the  defendant  object- 
ed. And  the  court  were  of  opinion,  that  the  said  testimony 
was  inadmissible,  and  refused  to  suffer  the  same,  or  any  part 
thereof,  to  go  to  the  jury.  The  plaintiff'  excepted. 

8.  The  plaintiff  further  offered  to  prove  by  a  competent  wit- 
ness, that  the  witness  was  in  New-Orleans  in  May  1817,  and 
had  orders  to  purchase  flour;  that  the  price  of  superfine  flour  at 
that  time  was  $13;  that  he  docs  not  know  the  comparative  va- 
lue of  fine  and  superfine  flour.  In  the  market  of  Baltimore  the 
difference  between  fine  and  superfine  is  hall  a  dollar.  That 
fine  and  common  flour  is  inferior  in  value  generally  to  super- 
fine, but  that  the  witness  made  no  inquiries  at  Orleans  in  rela- 
tion *o  fine  or  common,  and  cannot  therefore  speak  of  the  re- 
lative value  of  those  qualities  of  flour  at  New-Orleans.  The 
plaintiff  further  offered  to  prove  by  another  competent  wit- 
ness, that  he  resided  in  New-Orleans,  and  did  business  there 
as  a  commission  merchant  from  1806  to  1811;  that  he  was,  dur- 
ing that  time,  in  the  practice  of  selling  a  good  deal  of  flour, 
and  was  well  acquainted  with  the  Neiu-Orleans  market  for 
flour,  and  the  usage  of  that  market  at  that  time,  and  with  the 
course  of  trade.  That  the  flour,  of  which  he  speaks,  was  the 
flour  which  came  down  the  Mississippi;  that  during  the  time 
above  mentioned  the  difference  in  value  between  superfine  flour 
and  common  flour  was  as  follows:  that  is  to  say,  that  when  su- 
perfine was  eleven  and  twelve  dollars,  common  flour  would  bf 


454  CASES  IN  THE  COU11T  OF  APPEALS 

WIUIAMSOK  t1.   Dinos. — 1827. 

about  nine  dollars  per  barrel,  and  so  in  proportion,  the  diffe- 
rence being  greater  when  flour  was  higher,  and  less  when  flour 
was  lower;  that  the  smallest  difference  the  witness  ever  knew 
between  superfine  flour  and  common  flour  in  the  New-Orleans 
market  was  three  dollars,  and  the  difference  between  fine  and 
superfine  was  about  one  and  one  half  dollars  per  barrel,  when 
the  price  was  such  as  is  above  mentioned,  and  that  difference 
increased  and  diminished  according  to  the  price  of  flour  in  the 
rates  above  mentioned;  fine  flour  is  inferior  in  value  to  super- 
fine flour,  and  common  flour  inferior  in  value  to  fine  flour.  It 
was  generally  difficult  to  sell  fine  or  common  flour  in  the  mar- 
ket at  Orleans,  but  superfine  flour  had  generally  a  ready  sale. 
That  witness  had  not  been  at  New-Orleans  Jffnee  May  1811, 
and  has  no  personal  knowledge  of  the  prices  of  flour,  or  the 
usages  of  trade  since  that  period  of  time;  that  they  could  al- 
ways obtain  for  flour  of  the  Baltimore  brand  two  or  three  dol- 
lare  more  than  for  flour  brought  down  the  Mississippi  from  the 
Western  Country,  and  would  always  sell  superfine  flour  for 
something,  when  fine  and  common  flour  could  not  be  disposed 
of.  And  also  offered  to  prove  by  another  competent  witness., 
that  the  said  witness  resided  in  New-Orleans  in  1819,  and  was 
a  clerk  in  a  mercantile  house  at  that  place;  that  the  price  of 
merchantable  flour  was  at  that  time  $8  per  barrel,  and  that  mer- 
chantable flour,  so  called  in  the  market  of  New-Orleans,  were 
one  third  fine  and  two  thirds  superfine;  that  the  prices  of  flour 
during  the  months  of  November  and  December  1819,  and  Ja- 
nuary and  February  1820,  were  at  $8  per  barrel,  and  that  prices 
fluctuated  during  the  residue  of  1819  from  50  cents  to  a  dollar; 
that  at  the  time  above  mentioned,  flour  which  passed  inspection 
at  New-Orleans  as  common  only,  was  of  less  value,  and  was 
worth  in  New-Orleans  only  five  and  a  half  dollars  per  barrel, 
when  merchantable  flour  was  worth  $8  per  barrel.  Witness 
lived  there  from  1819  to  1822;  that  while  the  witness  resided 
there  flour  which  passed  inspection  as  common  flour  was  al- 
ways inferior  in  value  to  merchantable  flour  as  above  described", 
and  that  when  flour  was  high  the  difference  was  greater,  #nd 
when  lower  the  difference  was  less.  And  also  offered  in  evi- 
dence by  another  witness,  that  the  witness  resided  at  Zanes- 
villefrom  1811  to  1817,  and  left  Zanesville  on  the  20th  of 


OF  MARVLAM).  455 

WILLIAMSON  v.  DILIO.V. — 1827. 

April  1817;  that  when  he  left  Zanesville  he  was  between  14 
and  15  years  of  age,  and  the  fall  before  he  left  there  he  was  em- 
ployed by  several  persons,  in  conjunction  with  two  others,  to 
make  an  enumeration  of  the  inhabitants  of  the  town  of  Zanes- 
ville. The  flour  from  Zanesville  was  generally  sent  to  the 
New-Orleans-  market,  but  was  sometimes  sold  on  the  way., 
where  a  market  offered,  as  at  Cincinnati,  Louisville,  or  other 
places.  There  was  no  public  inspection  for  flour  at  Zanesville 
before  or  at  the  time  when  the  witness  left  there.  That  at  the 
time  they  were  making  the  enumeration  as  above  mentioned, 
they  endeavoured  to  ascertain  the  amount  of  flour  dispatched 
from  Zanesville,  and  the  witness  made  inquiries  on  that  sub- 
ject, but  he  was  unable  to  ascertain  it,  and  gave  it  up.  That  the 
father  of  this  deponent  was  a  physician,  and  in  the  habit  of  re- 
ceiving wheat  from  his  patients,  which  he  somestjmcs  sold  to 
millers,  sometimes  had  it  ground  into  Hour,  and  sometimes  bar- 
tered the  wheat  or  flour  for  such  articles  as  he  wanted;  that 
there  was  very  little  money  in  the  country,  but  flour  generally 
had  a  ready  sale  for  cash,  because  it  was  one  of  the  articles  usual- 
ly sent  to  market  to  New-Orleans;  but  has  no  knowledge  of  any 
particular  sale  of  flour  having  been  made  at  Zanesville,  and 
speaks  only  of  what  he  generally  understood  to  be  the  course 
of  business  in  relation  to  flour,  and  as  to  what  he  has  already 
stated  in  relation  to  the  general  destination  of  flour  to  Ncw-0r>- 
leans.  He  has  no  personal  knowledge  on  the  subject,  and  no- 
other  knowledge  than  what  he  derived  from  the  information  of 
others,  and  from  seeing  boats  frequently  depart  from  Zane£- 
ville,  which  he  understood  from  the  boatmen,  when  he  saw  them 
taking  their  departure,  to  be  destined  for  Orleans,  and  also 
from  what  he  generally  understood  at  Zanesville  to  be  the 
course  of  the  trade.  He  had  frequent  conversations  with  boat- 
men who  were  engaged  in  the  trade  on  the  river,  and  also  had 
conversations  with  the  young  men  who  were  employed  to  super- 
intend the  sale  of  flour,  and  his  information  as  to  the  course  of 
the  trade,  as  above  stated,  is  derived  from  these  sources.  To  the 
admissibility  of  all  which  testimony,  so  far  as  the  same  refers  or 
relates  to  the  relative  value  of  flour  at  New-Orleans,  or  so  far  as 
the  same  refers  or  relates  to  the  relative  value  of  the  different 
qualities  of  flour  at  any  place  on  the  Ohio,  other  than  at  Z-anes* 


456  CASES  IN  THE  COURT  OF  APPEALS 


WILLIAMSOX  v.  DILLON. — 1827. 


Dille,  the  defendant  objected.  Of  which  opinion  was  the  court, 
and  refused  to  let  the  said  evidence  go  to  the  jury  so  far  as  above 
objected  to.  Whereupon  the  plaintiff  prayed  the  court  to  de- 
signate the  particular  sentences,  passages,  and  parts  of  the  tes- 
timony above  stated,  which  were  admitted  and  rejected.  Which 
the  court  refused  to  do  further  or  more  particularly  than  is  done 
in  the  above  stated  objection  and  opinion.  To  which  opinion 
of  the  court,  as  stated  in  this  exception,  the  plaintiff  excepted. 

9.  After  the  plaintiff  had  closed  the  evidence  in  support  of 
the  issue  on  his  side,  all  which  is  set  forth  in  the  several  pre- 
ceding bills  of  exceptions  taken  on  the  part  of  the  plaintiff,  the 
defendant  prayed  the  instruction  of  the  court  to  the  jury,  that 
to  enable  the  plaintiff  to  support  his  action  in  this  case,  it  is  ne- 
cessary that  he  should  prove,  by  competent  evidence,  the  com- 
parative value  at  ZanesvilJe  of  the  flour  contracted  to  be  de- 
livered, and  of  that  which  was  actually  delivered  at  the  time 
specified  in  the  covenant;  that  the  difference  between  these 
values  constitutes  at  once  the  proof  of  damage,  and  the  mea- 
sure of  that  damage;  that  the  plaintiff  has  offered  no  proof  of 
such  comparative  value,  and  that  in  the  absence  of  all  evidence 
of  that  comparative  value,  the  plaintiff  is  not  entitled  to  a  ver- 
dict in  this  case.  Which  opinion  and  direction  the  court  gave 
to  the  jury.  The  plaintiff  excepted;  and  the  verdict  and  judg- 
ment being  against  him,  he  appealed  to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
MARTIN,  STEPHEN,  and  DORSEY,  J. 

Scott,  for  the  Appellant,  contended,  1.  That  the  court  be-< 
low  erred  in.  not  granting  the  second  prayer  contained  in  the 
first  bill  of  exceptions;  because  the  measure  of  damages  wa* 
the  difference  of  value  at  New- Orleans,  at  the  time  of  the  in- 
spection, between  the  kind  of  flour  contracted  to  be  delivered, 
and  the  flour  actually  delivered  as  passed  by  the  inspector  of 
flour  at  New-  Orleans. 

2.  That  even  if  the  court  were  right  in  refusing  the  second 
prayer  contained  in  the  first  bill  of  exceptions;  yet  they  erred 
in  rejecting  the  evidence  contained  in  the  second  bill  of  excep- 
tions, and  in  the  opinion  therein  expressed;  because  iho  evi-r 


OF  MARYLAND.  457 


WILLIAMSON  v.  DILLON. — 1827. 


tlence  contained  in  the  second  bill  of  exceptions  was  competent 
testimony  to  go  to  the  jury,  to  prove  the  difference  in  value  at 
Zanesville,  between  the  flour  stipulated  to  be  delivered,  and 
that  which  was  delivered,  at  the  time  the  flour  was  by  the  con- 
tract to  have  been  delivered. 

3.  That  the  court  below  erred  in  not  giving  the  opinion  and 
direction  prayed  for  by  the  plaintiff,  as  set  forth   in  the  third 
bill  of  exceptions;  because,  in  the  absence  of  all  proof  of  the  re- 
lative prices  of  superfine,  fine,  and  common  flour,  at  Zanesville^ 
or  at  any  other  place  on  the  Muskingum  river,  except  at  Ma- 
rietta, the  jury  ought  to  have  been  permitted  to  take  into  con- 
sideration the  relative  value  of  the  above  mentioned  qualities 
of  flour  at  Marietta,  it  being  the  nearest  point  to  ZanesvUle 
mentioned  in  the  evidence. 

4.  That  the  court  below  erred  in  not  giving  the  opinion  pray- 
ed for  by  the  plaintiff,  as  is  set  forth  in  the  fourth  bill  of  ex- 
ceptions; because,  in  the  absence  of  all   proof  of  the  relative 
value  of  superfine,  fine,  and  common  flour,  at  Zanesville,  or  at 
any  other  place  on  the  Muskingum  river,  except  at  Marietta, 
the  jury  ought  to  have  been  permitted  to  take  into  considera- 
tion the  relative  value  of  the  above  mentioned  qualities  of  floui' 
at  New-Orleans,  with  a  proper  allowance  for  the  expcncesand 
risk  of  transportation.     New-Orleans  being  a  suitable  and  pro- 
per place  tor  the  inspection  of  the  said  flour. 

5.  That  the  court  below  erred  in  refusing  to  permit  the  evi- 
dence contained  in  the  fifth  bill  of  exceptions  to  go  to  the  jury; 
because  the  evidence  therein  set  forth  was  competent  evidence 
to  go  to  the  jury,  for  the  purpose  of  showing  the  value  of  super- 
fine, fine,  and  common  flour,  at  Zanesville,\n  1817,  at  the  time 
<?f  the  delivery  of  the  flour  mentioned  in  the  first  bill  of  ex- 
ceptions; and  that  the  kind  of  flour  actually  delivered  was  of 
no  value  for  exportation. 

G.  That  the  court  erred  in  refusing  to  permit  the  answer  of 
JHaunsel  IVhite.  to  the  plaintiff's  third  interrogatory  to  go  to 
the  jury,  and  in  the  opinion  expressed  in  the  sixth  bill  of  ex- 
ceptions; because  the  said  answer  was  competent  evidence  to 
go  to  the  jury,  to  show  the  difference  in  value  between  super- 
fine, fine,  common  flour,  and  middling,  at  New-Orleans^  in  the 
Spring  of  the  year  1817. 
VOL.  r/  53 


458  CASES  IN  THE  COURT  OF  APPEALS 

WILLIAMSON  v.  DILLOX. — 1827. 

7.  That  the  court  erred  in  refusing  to  permit  the  evidence 
contained  in  the  seventh  bill  of  exceptions  irom   going  to  the 
jury;  because  the  said  evrlenoe  was  competent  testimony  to  go 
to  the  jury,  to  show  the  difference  in  value  between  superfine, 
fine,  and  common  flour,  at  New-Orleans,  in  the  spring  of  the 
year  1817. 

8.  That  the  court  erred  in  rejecting  the  evidence  contained 
in  the  eighth  bill  of  exceptions,  or  any  part  thereof,  and  in  re- 
fusing to  designate  the  particular  sentences,  passages,  and  parts 
of  the  testimony,  contained  in  this  bill  of  exceptions,   which 
were  inadmissible;  because  the  whole  of  the  said  evidence  was 
competent  to  go  to  the  jury — 1st.  For  the   purpose  of  show- 
ing the  relative  value  of  superfine,  fine,  and  common  flour,  at 
New-Orleans,   in  the  spring  of  the  year  1817.     2d.   For  the 
purpose  of  showing  its  value  at  Zanesville.      3d.   For  the  pur- 
pose of  showing  that  there  was  no  flour  inspection  at   Zanes- 
ville in  1817.   And  lastly.   For  the  purpose  of  showing  the  state 
of  the  flour  trade  on  the  Mississippi,  and  its  tributary  waters, 
in  the  year  1817. 

9.  That  the  court  erred  in  granting  the  prayer  and  direction 
contained  in  the  ninth  bill  of  exceptions.     1st.  Because  it  was 
not  necessary  that  the  plaintiff  should  prove  the  comparative 
value  at  Zanesville  of  the  flour  contracted  to  be  delivered,  and 
of  that  which  was  actually  delivered  at  the  time  specified  in  the 
covenant.     2d.  Because  the  difference  in  value  at  New-Or- 
leans, at  the  time  of  the  inspection,  between  the  floui  actually 
delivered,  and  that  contracted  to  be  delivered,  constitutes  the 
measure  of  damages  sustained  by  the  plaintiff,  and  not  the  dif- 
ference between  the  relative  values  at  Zanesville.    3d.   Because 
the  plaintiff  did  offer  evidence  of  such  relative  value  at  Zanes- 
ville, as  well  as  at  New-Orleans.     4th.  Because  even  in  the 
absence  of  all  evidence  of  that   comparative  value,   the  court 
should  have  left  the  issue  made  up  between  the  parties  to  the 
jury,  whose  particular  province  it  was  to   decide  whether  the 
defendant  had  fulfilled  and  performed   his  contract.      5th.  Be- 
cause there  was  a  contrariety  of  evidence  as  to  the  quality   of 
the  flour.     6th.   Because  if  the  jury  were  not  satisfied  from  the 
evidence  that  the  flour  actually  delivered  was  such  flour  as   the- 
plaintiff  was  entitled  to  under  the  agreement,  although  therp 


OP  MARYLAND.  459 


WILLIAMSON  v.  DILLON — 1827- 


might  have  been  an  absence  of  proof  by  which  the  measure  of 
damages  could  have  been  ascertained;  yet  that  the  plaintiff  would 
have  been  at  least  entitled  to  nominal  damages.  7th.  Because 
the  burthen  of  proof  was  with  the  defendant  to  show  that  he 
had  kept  and  fulfilled  his  covenant.  8th.  Because  the  evidence 
shows  that  the  flour  actually  delivered  did  not  pass  inspection 
according  to  the  stipulation  contained  in  the  contract. 

On  the  first  bill  of  exceptions,  as  to  the  construction  of  the 
contract,  he  cited  2  Bac.  M.  tit.  Covenant,  (F)  76.  "3  Com. 
Dig.  tit.  Covenant,  (D  1,)  262.  1  Phill.  Evid.  416.  1  Pow. 
on  Cont.  385.  2  Com.  on  Cont.  532.  Harper  vs  Hampton, 

1  Harr.  fy  Johns.  672.     De  Sobry  vs  De  Laistre,  2  Harr.  Sf 
Johns.  228.     As  to  the  measure  of  damages  to  be  allowed  for 
the  nonfulfilmentof  the  contract,  he  cited  Cannellvs  M'C/ean, 
6  Harr.  fy  Johns.  297.    Downes  vs  Back,  2  Serg.  8?  Low.  407. 
Bridge  is  Wain,  Ib.  486.     Bracket  vs  M'A'im*,   14  Johns. 
Hep.  170.     J^mory  vs  !AlGreggor,  15  Johns.  Rep.  24. 

On  the  ninth  bill  of  exceptions,  he  cited  Douglass  vs  M<«/2/- 
lister,  3  Crunch,  298.  Hurstfordvs  Wright,  1  Day^s  Rep.  3. 
Davis  vs  Davis,  7  Harr.  $•  Johns.  36.  Morris  vs  Brickiey  Sf 
Caldwell,  (ante  107.  J  Stanard  vs  Eldridge,  16  Johns.  Rep. 
254. 

On  the  second,  fifth,  and  seventh  bills  of  exceptions,  he 
cited  1  Phill  Evid.  209,  (227,)  ch.  8.  Ib..  167,  ch.  7,  s.  6. 

2  Phill.  Evid.  45.     1  Stark.  Evid.  398,  399.  400. 

On  the  eighth  bill  of  exceptions,  he  cited  3  Stark.  Evid\ 
1252. 

Meredith,  for  the  Appellee.  It  is  contended  by  the  appellee, 
that  he  has  kept  his  covenant,  and  performed  the  contract.  He 
does  not  hold  himself  bound  by  the  construction  given  by  the 
court  to  the  contract,  as  stated  in  the  first  bill  of  exceptions. 
That  the  contract,  if  it  looks  to  an  inspection  at  all  of  the  flour,  it 
was  that  it  should  be  inspected  at  Zanesville;  and  if  no  public 
inspection  there,  then  there  was  to  be  a  privaie  inspection.  It 
never  was  intended  that  the  flour  was  to  be  sem  t<>  ^<w-  Orleans 
at  the  risk  of  the  appellee  For  the  purpose  of  this  argument, 
however,  it  must  be  admitted  by  the  appellee,  that  the  court  be- 
low gave  a  proper  construction  to  the  contract.  The  whole  case 


CASES  IN  THE  COURT  OF  APPEALS 

WILLIAMSON  v.  DILLON. — 1827. 

before  this  court  is,  what  was  the  proper  measure  of  damages? 
The  contract  is  a  written  one,  and  it  must  be  construed  by  the 
court.  The  measure  of  damages  is  legally  incorporated  into 
every  contract;  and  the  rule  given  by  the  court  below,  as  to 
the  measure  of  damages,  was  the  proper  rule.  The  defendant 
did  not  subject  himself  to  the  fluctuations  of  a  foreign  market. 
He  stipulated  to  deliver  the  flour  at  Zanesville,  and  there  he 
did  deliver  it.  If  he  had  failed  altogether  to  deliver  the  flour, 
what  would  have  been  the  measure  of  damages?  Not  what 
would  be  the  price  at  New-Orleans,  or  any  foreign  market,  to 
which  the  plaintiff  might  have  intended  to  ship  it;  but  the 
Standard  of  value  would  be  fixed  at  Zanesville  at  the  time  when 
the  contract  was  to  be  consummated.  Chipman  on  Contracts, 
121,  and  the  cases  there  referred  to.  Shepherd  vs  Hampton, 
3  Wheat.  200.  Gaimford  vs  Carroll,  9  Serg.  $  Low  204. 
Leigh  vs  Paterson,  8  Taunt.  540,  (4  Serg:  fy  Low.  204. ) 
2  Stark.  Evidi  645,  646.  Gilpins  vs  Consequa,  1  Peters'  C, 
C.  Rep.  94.  Willi ngs  $?  Francis  vs  Consequa,  Ib.  172.  Smith 
vs  Richardson,  3  Caine's  Rep.  219.  But  it  has  been  said  that 
the  contract  was  not  completed  until  after  the  flour  was  inspected 
at  New-Orleans.  The  contract  stipulates  that  the  flour  should 
be  delivered  at  Zanesville;  and  it  was  delivered  there  to  the 
plaintiff,  who  sent  it  to  New-Orleans.  Suppose  the  flour  had 
been  lost  in  its  transportation,  would  the  defendant  be  bound  to 
supply  other  flour  of  the  same  or  any  other  quality?  If  the  mea- 
sure of  damage  was  the  value  of  the  flour  at  Zanesville,  thea 
the  plaintiff  should  have  produced  evidence  of  what  was  the 
"value  at  Zanesville.  This  he  did  not  do;  although  such  evi- 
dence might  have  been  obtained.  No  evidence  shor*  of  that 
required  could  be  received. 

Jf  there  ought  to  have  been  nominal  damages  in  this  case, 
this  court,  under  the  act  of  1809,  ch.  153,  are  authorised  t* 
amend  the  proceedings  so  as  to  give  nominal  damages. 

Taney,  in  reply.  The  construction  given  by  the  court  be- 
low to  this  contract  on  the  first  prayer  of  the  plaintiff,  is  the 
true  one.  We  mrst  take  it  with  its  consequences.  The  con- 
tract was  to  deliver  flour  which  should  pass  inspection,  l-3d  fine., 
3-3ds  superfine.  These  latter  terms  imply  a  public  inspection* 


OF  MARYLAND.  461 


WILLIAMSOIC  v.   DILLON. — 1827. 


for  private  opinion  could  not  pass  the  flour,  as  either  fine  or 
superfine.  The  purport  of  an  inspection  is  to  give  an  article  a 
fixed  character.  The  value  of  the  flour  was  to  be  so  fixed  in  the 
market  by  the  intent  and  contract  of  the  parties.  The  inspec- 
tion was  to  influence  the  market  value.  This  quality  of  fine 
and  superfine  to  be  fixed  by  inspection,  was  to  be  attached 
to  the  flour  at  New- Orleans,  the  only  place  for  inspection;  and 
was  to  be  conclusive  between  the  parties.  We  admit  that  the 
time  and  place  of  the  breach,  the  difference  in  value  then  and 
there,  will  furnish  the  measure  of  damages.  Dillon  warrants 
the  flour  shall  pass,  and-  therefore  he  covenanted  that  William- 
son might  take  the  flour  to  Orleans,  the  usual  place  of  inspec- 
tion, where  of  course  it  was  to  pass.  His,  D's,  covenant  is  of 
that  extent.  The  flour  does  not  pass;  that  is  a  breach  of  the 
covenant,  not  of  delivery;  but  that  it  would  pass  inspection  at 
Orleans.  The  time  of  the  breach  then,  is  the  time  of  the  in- 
spection; the  place,  is  the  place  of  the  intended  inspection,  and 
that  was  Orleans.  It  is  a  mistake  to  confine  the  breach  to  the 
mere  delivery  of  uninspected  barrels.  We  claim  our  damages, 
therefore,  for  the  injury  sustained  at  Orleans  at  the  time  of  the 
inspection  and  discovery  that  our  contract  had  been  violated. 
Neither  would  it  be  conect  to  apply  to  the  breach  arising  from, 
a  failure  to  pass  inspection,  the  same  measure  of  damages  as  for 
a  nondelivery.  In  the  latter  case  the  purchaser,  not  having 
parted  with  his  money,  can  replace  the  article,  and  the  diffe- 
rence of  price,  at  the  place  of  delivery,  would  fully  remunerate 
him.  To  this  last  case  a  failure  to  deliver  stock  sold  to  be  de- 
livered at  a  future  day,  is  analogous;  but  the  true  measure  of 
damages  in  this  case  is  the  equity  which  the  purchaser  has  ta 
reimbursement  under  its  peculiar  circumstances.  Bridge  vs 
Wain,  2  Serg.  #  Low.  486.  1  Stark.  Evid  504. 

The  sufficiency  of  the  evidence  alone  was  for  the  considera- 
tion of  the  court;  all  the  bills  ot  exceptions  might  have  con- 
stituted one.  There  is  no  one  prayer  as  to  the  sufficiency  of 
the  evidence;  but  they  all  go  as  to  the  admissibility  of  the  evi- 
dence. It  is  clear  that  the  plaintiff  could  give,  and  that  he  did 
give  evidence  that  the  price  of  flour  on  the  river  was  regulated 
by  the  price  at  New-Orleans,  and  he  proved  the  relative  value 
-at  each  place,  except  at  Zanesville.  The  evidence  was  cer- 


462  CASES  IN  THE  COURT  OF  APPEALS 

WILLIAMSON  ».'.  DILLON. — 1827. 

tainly  admissible,  but  whether  sufficient  or  not,  was  another 
question,  and  which  was  for  the  jury  to  decide. 

On  the  eighth  bill  of  exceptions,  he  cited  1  Stark.  Evid.  395. 
3  Stark.  Evid.  1244,  1245. 

On  the  ninth  bill  of  exceptions.  Where  there  is  a  breach 
of  the  covenant  by  the  defendant,  there  must  be  a  verdict  for 
nominal  damages  at  least.  The  act  of  180;J,  ch.  153,  cannot 
authorise  this  court  to  amend  the  judgment.  The  judgment 
is  for  the  defendant,  and  it  may  be  amended  so  as  to  support 
that  judgment;  but  by  amending  it  by  givirg  nominal  damages 
to  the  plaintiff,  would  be  to  reverse  the  judgment. 

•MARTIN,  J.  delivered  the  opinion  of  the  court.  This  was 
an  action  instituted  to  recover  damages  for  the  nonperformance 
«f  a  covenant  entered  into  between  the  parties  on  the  25th  of 
January  1817,  in  the  following  words,  (and  which  was  signed 
and  sealed  by  them:) — "Memorandum  of  an  agreement  entered 
into  on  this  25th  day  of  January  1817,  between  Moses  Dillon, 
of  Zanesville,  state  of  Ohio,  and  David  Williamson  of  Bal- 
timore, state  of  Maryland,  whereby  the  said  Moses  Dillon 
obligates  and  binds  himself  to  deliver  to  the  said  Williamson, 
«r  order,  at  Zanesville,  two  hundred  and  fifty  barrels  of  flour, 
not  less  than  one-third  of  same  flour  to  pass  as  fine  quality,  the 
remaining  two-thirds  of  superfine,  to  be  at  said  place  by  the 
Jirst  day  of  March  next,  to  be  lined  and  in  good  shipping  or- 
der; and  to  deliver  on  the  15th  of  same  month,  two  hundred 
and  fifty  barrels  of  flour  of  same  quality  as  the  first  mentioned 
quality,  and  in  like  order,  to  the  said  Williamson,  or  order,  at 
the  above  named  place,  for  which  flour,  on  its  delivery  as 
above,  the  said  David  Williamson,  Jr.  binds  and  obligates  him- 
self to  pay  to  the  said  Moses  Dillon,  or  order,  the  sum  of  se- 
ven dollars  per  barrel,  for  which  flour  payment  will  be  made 
to  the  said  Dillon  with  his  bonds  passed  to  Luke  Tiernan  and 
Kennedy  Owen,  of  Baltimore,  interest  being  added  in  said 
loond  to  the  day  of  the  delivery  of  said  flour,  at  the  par  of  ex-, 
change.  In  testimony,"  &c. 

In  the  trial  of  this  cause,  many  exceptions  were  taken  to  opi- 
nions given  by  the  court  below;  and  without  following  the  re- 
gular order,  in  which  they  appear,  we  will  decide  the  points 


OF  MARYLAND.  463 


WILLIAMSON  v.  DILLOW. — 1827. 


that  arise  in  them,  and  then  apply  the  law  to  each  exceptioa 
respectively. 

The  true  construction  of  this  contract  is  the  first  question  to 
be  examined. 

That  the  intention  of  the  parties  making  a  contract  is  to  be 
regarded, and  when  practicable,  carried  into  effect,  is  a  funda- 
mental rule  in  the  construction  of  contracts.  Where  the  agree- 
ment is  in  writing,  and  an  ambiguity  appears,  not  on  the  face 
of  the  paper,  you  may  have  recourse  to  extrinsic  evidence  to 
aid  in  its  construction;  but  where  its  language  is  clear  and  ex- 
plicit, the  instrument  must  be  construed  according  to  its  plaia 
import  and  terms.  In  this  case  we  see  no  ambiguity,  and  we 
think  the  agreement,  on  the  face  of  it,  clearly  points  out  the 
intention  of  the  parties  contracting 

The  contract  is  for  the  delivery  of  a  certain  quantity  of  flour, 
of  a  particular  quality;  to  be  delivered — where?  The  contract 
expressly  states,  at  Zanesville.  When  was  it  to  be  delivered? 
It  is  equally  explicit  that  the  first  250  barrels  were  to  be  deli- 
vered on  the  1st  of  March  1817,  and  the  remainder  on  the  15tlt 
of  the  same  month,  and  Williamson  stipulated  that  he  would 
pay  for  the  said  flour  seven  dollars  a  barrel,  on  its  delivery  as 
aforesaid.  But  the  flour,  thus  to  bo- delivered  on  the  1st  and 
\Sth  of  March  at  Zanesville*  was  to  be  of  a  particular  quali- 
ty, and  the  agreement  points  out  the  evidence  by  which  the 
quality  shall  be  ascertained;  it  shall  be  such  flour  as  will  pass 
inspection,  &c.  The  inspection  was  no  part  of  the  contract, 
as  it  related  to  the  time  or  place  of  delivery •,  but  only  the 
evidence  or  test  by  which  it  was  agreed  the  quality  of  the  flour 
should  be  ascertained.  Suppose  on  the  clay  after  the  flour  was 
delivered,  Williamson,  under  an  impression  that  it  was  not  of 
such  quality  as  was  specified  in  the  contract,  had  instituted  a. 
suit  against  Dillon,  can  it  be  doubted  that  such  suit  could  bo 
sustained,  although  the  flour  had  not  then  been  inspected,  if 
afterwards,  upon  inspection,  it  would  not  pass?  The  moment 
the  stipulated  time  for  the  delivery  of  the  flour  had  passed,  the 
contract  was  either  performed  or  broken,  and  it  was  only  ne- 
cessary to  carry  it  to  New-Orleans,  or  any  other  place,  for  in- 
spection, to  furnish  evidence  of  its  quality. 

With  this  explanation  of  the  contract  we  are  next  to  enquire 


* 

464        CASES  IN  THE  COURT  OF  APPEALS 

WILLIAMSON  v.   DILLON  — 1827. 

at  what  time  and  place  the  price  of  flour  was  to  be  the  mea- 
sure of  damages;  and  with  this  view,  it  is  necessary  to  consi- 
der, not  only  what  the  contract  is,  but  what  it  is  not.  It  is  not 
a  contract  for  the  delivery  of  stock,  and  therefore  the  case  of 
Dowries  vs  Back,  2  Serg.  4*  Lowb.  407,  and  the  case  of  M-Jlr* 
ihur  vs  Lord  Seaforth,  2  Taunt.  257,  do  not  apply  to  it.  By 
this  contract  the  price  was  to  be  paid  when  the  fiour  was  deli- 
vered. It  is  not  for  affireightment,  and,  therefore,  not  within 
the  doctrine  laid  down  in  Bracket  vs  W'Nair,  14  Johns.  Rep. 
170,  and  *ftrnory  vs  M'Greggor,  15  Johns.  Rep.  24,  even  if 
the  authority  of  those  cases  had  never  been  questioned;  nor  is 
it  a  contract  for  the  sale  and  delivery  of  articles  where  no  time 
or  place  is  specified  for  the  delivery,  as  in  Bridge  vs  Wain,  2 
Serg:  4*  Lowb.  486.  These  are  cases  decided  upon  principles 
not  applicable  to  the  one  now  belore  us,  and  we  look  in  vain  t» 
-them  to  aid  us  in  forming  a  correct  opinion  in  this  case. 

It  is  believed  that  no  case  can  be  found  where  there  was  an 
agreement  to  deliver  a  specific  article  at  a  particular  time  and 
place,  and  the  money  to  be  paid  at  the  time  of  delivery,  that 
the  value  of  that  article,  at  the  time  and  place  of  delivery  > 
was  not  considered  the  measure  of  damages,  unless  where  the- 
contract  showed  it  was  for  a  particular  purpose,  and  special  da- 
mages were  laid  in  the  declaration.  In  Chipman  on  Con- 
tracts, 121,  it  is  stated,  "If  property  be  sold  at  a  particular 
price,  to  be  delivered  at  a  future  day,  and  in  the  meantime  the? 
property  rise,  the  purchaser  is  entitled  to  the  rise  of  property; 
and  if  the  property  be  not  delivered,  the  value  of  the  proper- 
ty, at  the  time  and  place  of  delivery,  is  the  measure  of  da- 
mages." And  in  Shepherd  vs  Hampton,  3  TVheat.  200,  "It 
was  the  unanimous  opinion  of  the  court,  that  the  price  of  the 
article,  at  the  time  it  was  to  be  delivered,  is  the  measure  of 
damages."  See  also  the  case  of  Leigh  vs  Patterson,  4  Serg- 
4*  Lowb.  204.  Gains  ford  vs  Carroll  and  others,  9  Serg.  $• 
Lowb.  204,  and  Canmll  vs  M' Clean.  6  Harr.  $  Johns.  297. 

The  same  rule,  we  think,  will  apply,  where  the  damages  arc 
claimed,  not  for  the  nondelivery  of  the  article,  but  for  the  tic- 
livery  of  an  article  of  a  different  quality  from  that  contracted 
to  be  delivered.  The  difference  of  price,-  at  the  time,  and pla& 


OP  MARYLAND.  465 


WILLIAMSOX  v.  DILI.OX. — 1827. 


stipulated  for  the  delivery  between  the  article  delivered  and 
that  contracted  for,  is  the  measure  of  damages. 

The  case  of  GUpins  vs  Consequa,  1  Peters'  C.  C.  Rep.  86, 
sustains  this  position.  That  was  an  action  brought  to  recover 
damages  for  the  nondelivery  of  teas,  of  the  quality  contracted  to 
be  delivered,  by  Consequa,  the  defendant,  to  the  supercargo  of 
GUpins.  Consequa  stipulated  to  deliver  at  Canton  a  cargo  of 
tea  for  the  Pennsylvania  Packet,  to  be'  fresh,  prime,  and  of 
the  first  chop.  The  tea  was  delivered,  and  carried  first  to 
Philadelphia,  and  afterwards  to  Amsterdam,  where  it  was 
sold  at  public  sale,  according  to  the  usage.  From  a  comparison 
of  the  sales,  it  appeared  these  teas  sold  for  less  than  some  other 
teas  of  the  same  kind,  which  was  attributed  to  their  being  of 
inferior  quality.  Judge  Washington  charged  the  jury,  that 
us  the  contract  was  to  deliver  teas  at  Canton  of  a  certain  quali- 
ty, they  would  consider  the  sales  at  ^nlsterdam,  arid  the  com- 
parison of  them  with  those  of  other  teas,  not  as  furnishing  the 
amount,  but  the  rate  of  loss;  and  having  ascertained  the  rate, 
to  apply  it  to  the  prices  of  the  same  articles  of  first  quality  at 
Canton,  when  these  teas  were  delivered.  And  the  learned 
judge,  in  illustration  of  this  doctrine,  stated — "If  a  man  con- 
tract to  deliver  a  quantity  of  flour,  for  instance,  by  a  particular 
day,  and  fails,  or  deliver  it  of  a  qualify  inferior  to  that  stipulated 
for,  all  that  can  be  claimed  from  him  in  the  first  case,  is  the 
price  of  such  flour  at  the  time  and  place  when  and  where  it 
was  to  be  delivered;  or  in  the  second,  to  make  up  the  difference 
|n  quality/'  In  the  case  of  Witlings  8f  Francis  vs  Consequa., 
1  Peters'  C.  C.  Rep.  176,  the  doctrine  laid  down  in  the  first 
case  is  recognized  and  adopted.  Speaking  of  the  rule  in  Gil- 
pins  vs  Consequa,  the  Judge  says,  "with  this  rule  the  court 
finds  no  cause  to  be  dissatisfied;  and  the  reason  of  it  is  obvious, 
the  contract  is  to  deliver  teas  of  the  best  qualify  at  Canton;  if 
it  be  not  complied  with,  the  price  of  such  teas  at  that  place,  is 
the  just  measure  of  the  damage  sustained  by  the  plaintiff." 

But  it  is  thought  this  rule,  to  ascertain  the  damages,  will  not 
afford  to  the  plaintiff  ample  justice;  he  ought  also  to  recover 
the  amount  of  expenses  necessarily  incurred  in  transporting  the 
fl  >  .ir  to  New-Orleans-  for  inspection.  The  answer  is,  such  was 
not  the.  contract.  If  that  had  been  a  stipulation  between  the 
VOL.  i.  59 


466       CASES  IN  THE  COURT  OF  APPEALS 

WILLIAMSON  v.    DILLON. — 1827. 

V— ; ; ' — • • __— — — — — — — — 

parties,  it  should  be  found  in  the  agreement.  In  its  absence, 
this  court  can  only  act  upon  the  contract  as  they  find  it,  and  ap- 
ply to  such  contract  the  general  established  principles  of  Ia\v. 

The  next  question  is,  whether  the  testimony  offered  by  the 
plaintiff  was  admissible  for  that  purpose? 

Through  the  whole  trial  of  this  cause,  the  court  of  Balti- 
more county  seems  to  have  acted  under  the  impression  that  no 
testimony  was  admissible  to  prove  the  relative  price  of  flour  at 
Zanesville,  unless  it  was  direct,  positive  proof,  from  a  witness, 
who  knew  the  value  at  that  place,  and  that  in  the  absence  of 
such  positive  proof,  the  jury  could  not  be  permitted  to  establish 
that  fact,  by  any  other  testimony.  In  this,  we  think  the  court 
«rred.  The  evidence  offered  is  not,  as  was  contended,  seconda- 
ry evidence.  It  is  of  the  same  grade  with  that  required  by  the 
court,  although  perhaps  of  a  less  conclusive  character.  Where 
testimony  is  offered,  which  of  itself  shows  there  is  other  evi- 
dence of  a  higher  character,  it  is  secondary  evidence;  as  in  the 
case  of  a  written  agreement — the  copy  is  not  admissible,  until 
you  first  show  the  original  cannot  be  had;  because  the  copy  of 
itself  clearly  proves,  there  is  evidence  of  a  higher  character, 
which  ought  to  be  produced,  unless  its  absence  is  accounted  for. 
Not  so,  where  the  testimony  is  of  the  same  grade,  although  it 
may  not  have  an  equal  effect  with  the  jury.  The  object  to  be 
attained  in  this  case,  was  the  relative  value  of  flour  at  Zanes- 
ville,  between  that  delivered,  and  that  contracted  for;  and  this 
might  be  proved  either  by  a  witness  who  knew  the  price  of 
each  kind  of  flour  at  Zanesville,  or  by  showing  the  value  at 
different  places,  by  which  the  jury  could  judge  of  its  relative 
value  at  Zanesville.  The  testimony,  therefore,  offered  by  the 
plaintiff,  of  the  price  of  each  kind  of  flour  at  New-Orleans, 
Marietta,  and  other  places,  was  admissible,  and  ought  to  have 
been  given  to  the  jury. 

The  evidence  offered  in  i\\e  fifth  bill  of  exceptions  was  hear- 
say, and,  therefore,  properly  rejected  by  the  court.  Some  dif- 
ficulty arises  in  forming  a  decision  on  this  exception  from  the 
want  of  care  in  taking  down  the  evidence.  The  witness,  after 
stating  that  "he  had  purchased  flour  at  Zanesville  in  the  spring 
of  1817,  and  paid  for  it  from  six  to  eight  dollars  a  barrel,  and 
that  he  had  paid  for  the  freight  of  flour  from  Zanesville  to 


OP  MARYLAND.  467 


WILLIAMSOX  v.  DILLON. — 1827. 


New-Orleans  two  dollars  per  barrel,"  said,  that  all  the  infur- 
mation  he  had  as  to  the  purchases  and  prices  was  derived  from 
his  brother  and  partner;  but  it  is  not  distinctly  ir.cntioned 
whether  the  prices  spoken  of  related  to  the  price  of  flour  alone, 
or  was  intended  to  include  the  price  of  both  flour  and  freight 
from  Zanesville  to  Netv-Orleans.  From  a  comparison  of  ther 
several  parts  of  the  testimony,  we  are  led  to  the  conclusion, 
that  his  knowledge  of  both  was  derived  from  the  same  source. 
He  was  not  in  the  Western  Country  in  the  spring  of  1S17,  nor 
did  he  make  the  purchases  himself,  but  the  whole  business  was 
transacted  by  his  brother  and  partner. 

The  court  were  also  right,  in  not  receiving  the  testimony  in 
the  sixth  bill  of  exceptions.  Maunsel  White,  the  witness, 
stated,  "that  he  was  called  on  in  the  spring  of  the  year  1817, 
by  Richard  Relf,  to  state  the  difference  usually  allowed  on  the 
sale  of  flour  between  superfine,  fine,  common  and  middling;  that 
he  then  stated  the  difference  was  as  follows,"  &.c.  This  might 
be  true,  and  yet  he  might  have  no  knowledge  of  the  facts,  lie 
only  swears  he  made  the  statement  to  Relf,  but  he  does  not 
swear  that  statement  was  true,  or  that  he  either  then  knew,  or 
ever  did  know,  the  facts  to  be  as  he  stated  them  to  Relf. 

The  testimony  offered  in  the  seventh  bill  of  exceptions  was 
hearsay,  and,  therefore,  liable  to  the  same  objection  with  that 
contained  in  the  fifth. 

That  part  of  the  evidence  in  the  eighth  bill  of  exceptions 
that  relates  to  the  price  of  flour  in  New-Orleans  in  1817,  and 
that  which  was  offered  to  prove  there  was  no  public  inspection 
at  Zanesville,  at  or  before  the  time  mentioned,  ought  to  have 
been  received;  the  residue  of  the  testimony  mentioned  was  pro- 
perly rejected.  The  price  of  flour  in  1811  and  1819,  could  not 
afford  a  correct  standard  to  show  its  value  in  1817. 

We  concur  in  the  opinions  given  by  the  court  below,  in  the 
first,  fifth,  sixth,  and  seventh  bills  of  exceptions,  and  dissent 
from  those  in  the  second,  third,  fourth,  eighth,  and  ninth  bills 
of  exceptions. 

DORSET,  J.  dissented  from  the  opinions  of  the  court  Mow  in 
the  first,  third,  and  fifth  bills  of  exceptions. 

JUDGMENT  BEVEHSEP,  AND  PROCEDEXDO  AwAftDED> 


468  CASES  IN  TJ3E  COURT  OP  APPEALS 

CATHELL  r.  GOODWIN  — 182r. 
CATHELL  vs.  GOODWIN. — June,  1827- 

The  drawer  of  a  dishonoured  bill,  who  neither  at  the  time  he  drew  it,  nor 
when  it  was  presented,  had  any  funds  in  the  hands  of  the  drawee,  nor 
such  expectation  of  its  payment  as  would  induce  a  merchant  of  com- 
mon prudence  and  ordinary  regard  for  his  commercial  credit  to  draw  a 
like  bill,  is  not  entitled  to  notice  of  such  dishonour. 

"Where  the  defendant  drew  a  bill  in  favour  of  the  plaintiff's  wife,  and  thus 
authorised  her,  in  express  terms,  to  receive  its  amount — the  bill  being 
presented  by  her,  and  payment  refused,  in  an  action  on  the  bill  by  the 
husband,  the  defendant  cannot  deny  the  wife's  right  to  demand  its  pay- 
ment. 

Whether  or  not  the  drawer  of  a  bill  had  reasonable  grounds  to  expect  that 
his  bill  would  be  honoured,  and  the  facts  upon  which  that  question 
arises  are  admitted  or  undeniable,  it  is  exclusively  a  matter  of  law  to  be 
pronounced  by  the  court;  but  if  the  facts  be  controverted,  or  the  proof 
be  equivocal,  or  contradictory,  then  it  becomes  a  mixed  question,  both 
of  law  and  fact,  in  which  case,  the  court  hypothetically  instruct  the  jury 
as  to  the  law,  to  be  by  them  pronounced  accordingly  as  they  may  find 
the  facts. 

Under  the  money  counts  the  plaintiff  may  recover,  by  evidence  of  the  de- 
fendant's  dishonoured  bill,  drawn  payable  to  the  order  of  the  plaintiff's 
wife — the  drawer,  under  the  circumstances  of  this  case,  not  being  enti- 
tled to  notice  of  the  nonpayment  of  his  draft. 

APPEAL,  from  Baltimore  County  Court.  Action  of  assump* 
sit  for  money  lent  and  advanced,  paid,  laid  out  and  expended, 
and  an  insimul  computassent.  The  defendant,  (now  appel- 
lee,) pleaded  non  assumpsit,  and  issue  was  joined.  At  the 
trial  the  plaintiff,  (the  appellant,)  offered  in  evidence  the  fol- 
lowing bill  of  exchange.  "Mr.  Jno.  Gooding.  Pay  to  the  or- 
der of  Mrs.  Matilda  Cathell  five  hundred  dollars,  and  charge 
the  same  to  your  ob.  st. 

Robt.  M.  Goodwin. 

$500.     June  24th,  1818." 

And  proved  it  to  be  in  the  handwriting  of  the  defendant,  and 
payable  to  the  plaintiff's  wife.  And  further  proved  that  the 
said  bill  was  presented  to  the  witness,  the  drawee  of  the  bill, 
by  Mrs.  Matilda  Cathell,  at  which  time  he  refused  to  pay  the 
bill;  and  at  that  time,  and  at  the  time  the  bill  was  drawn,  the 
drawee  had  not  in  his  possession  any  funds  belonging  to  the 
defendant.  And  the  said  witness,  the  drawee,  further  proved, 
that  at  tlfe  time  the  bill  was  presented  to  him  for  payment,  he 
told  Mrs,  Cathell)  that  if  funds  should  afterwards  come  into  his 
possession,  which  he  shortly  expected,  he  would  pay  said  bill, 


OF  MARYLAND.  469 


v.  GOODWIN. — 1827. 


and  that  Mrs.  Cathell  left  the  witness  without  reply.  That 
funds  did  afterwards  come  into  the  witness'  hands,  hut  the  bill 
was  not  again  presented  to  him  for  payment,  and  that  if  it  had 
been,  he  would  have  paid  it.  And  further  proved  that  the  de- 
fendant, when  he  drew  the  bill,  was  indebted  to  the  witness, 
the  drawee,  but  that  notwithstanding  he  would  have  paid  the 
draft  when  funds  came  into  his  hands;  and  that  the  said  funds 
were  all  disposed  of  for  account  of  the  drawer  of  the  said  bill. 
Upon  which  the  defendant  prayed  the  court  to  instruct  tl  -•  ,u- 
ry,  that  the  plaintiff  was  not  entitled  to  recover.  Which  in- 
struction the  Court,  t  V  'nson  and  Ward,  A.  J.]  gave  to  the 
jury.  The  plaintiff  excepUM  Verdict  a:  d  judgment  for  the 
defendant,  and  the  plaintiff  appealed  to  this  court. 

The  cause  was  argued  at  the  last  June  term,  before  BUCHA- 
NAN, Ch.  J.  and  STEPHEN,  ARCHER,  and  DORSET,  J. 

R  Johnson  and  Gill,  for  the  Appellant,  contended,  that  un- 
der the  circumstances  stated  in  the  bill  of  exceptions,  no  no- 
tice of  the  refusal  of  the  drawee  of  the  bill  to  pay  it,  could  be 
required  by  the  drawer.  They  referred  to  Eichelberger  vs 
Finley  fy  Van  Lear,  1  Harr.  fy  Johns.  381.  2  Phill.  Evid. 
10,21, 

Meredith  and  R.  B.  Magruderjor  the  Appellee,  cited  Eick- 
elbergervs  Finley  Sf  Van  Lear,  7  Harr.  8?  Johns.  381.  Chitty 
on  Bills,  268.  Bailey  on  Bills,  2T>9,  240,  241.  Rucker  vs 
Hiller,  3  Campb.  217.  S.  C.  16  East,  43.  Robins  vs  Gib- 
eon,  3  Campb.  334.  Blackhan  vs  Doren,  2  Campb.  503.  Clop- 
per  vs  Union  Bank  of  Maryland,  1  Harr.  8?  Johns.  92. 

Curia  adv.  vult. 

DORSEY,  J.  at  this  term  delivered  the  opinion  of  the  court. 
To  support  the  opinion  of  the  court  below,  the  appellee's  coun- 
sel have  relied  on  three  positions,  (either  of  which,  if  tenable, 
would  be  sufficient  for  their  purpose,)  viz.'  1.  That  Mrs.  Ma- 
tilda Cathell  was  not  competent  to  demand  payment  of  the 
bill.  2.  That  she  consented  to  receive  a  conditional  accept- 
ance, and  thereby  gave  time  to  the  acceptor.  3.  That  the 
drawer  had  reasonable  grounds  to  expect  that  his  bill  would 
"have  been  honoured. 


470  CASES  IN  THE  COURT  OF  APPEALS 

CATHEIL  v.  GOODWIN  — 1827. 

There  is  nothing  to  sustain  the  first  position.  The  defen- 
dant has  in  express  terms  authorised  Mrs.  Cathell  to  receive 
the  amount  of  the  bill.  To  den)7  her  the  right  to  demand  it, 
would  be  sanctioning  an  absurdity  for  the  mere  purpose  of 
working  injustice. 

The  second  position  is  equally  untenable.  The  facts  stated 
in  the  bill  of  exceptions  would  not  have  warranted  the  jury  in 
finding  Mrs.  Cat  hell's  acceptation  of  a  conditional  acceptance  of 
the  bill,  much  less  are  they  of  that  conclusive,  resistless  cha- 
racter which  would  authorise  the  court  to  assume  thefactrto 
the  ascertainment  of  which  a  jury  only  were  competent. 

The  third  position  was  that  most  obstinately  contended  for, 
which  was  conceived  to  be  impregnably  fortified  by  that  part 
of  the  rule  established  in  Eichelberger  vs  Finley  4*  Vun  Lear, 
7  ffarr.  <§•  Johns.  381,  which  dispenses  with  notice  only  where 
the  drawer  had  no  reasonable  grounds  to  expect  that  his  bill 
would  be  honoured.  The  reasonableness  of  such  expectation 
is  matter  for  the  court,  and  not  for  the  jury,  to  decide.  If  the 
facts,  upon  which  the  question  arises,  be  admitted  or  be  unde- 
niable, then  the  question  becomes  exclusively  a  matter  of  law 
to  be  pronounced  by  the  court;  but  if  the  facts  be  controvert- 
ed, or  the  proof  be  equivocal  or  contradictory,  then  it  becomes 
a  mixed  question  both  of  law  and  fact,  in  which  case,  the  court 
hypothetical!)?  instruct  the  jury  as  to  the  law,  to  be  by  them  pro- 
nounced accordingly  as  they  may  find  the  facts.  What  are  the 
facts  to  be  found  in  this  case  justifying  the  drawer's  expecta- 
tion that  his  draft  would  have  been  paid?  So  far  from  having 
funds  in  the  drawer's  hands,  he  was  his  debtor — no  proof  of 
such  a  commercial  intercourse  between  them  as  would  imply  a 
mutual  credit — no  previous  promise  by  the  drawee  to  accept 
this  or  any  other  draft  for  the  drawer's  accommodation — no 
consignment  of  goods  to  the  drawee,  which  the  drawer  had  any 
reason  to  expect  would  be  received  in  time  to  meet  his  bill,  but 
the  only  proof  is,  that  the  drawee  informed  the  payee,  that  he 
expected  funds  of  the  drawer  would  shortly  come  to  his  hands, 
•with  which,  when  received,  he  would  pay.  That  funds  after- 
wards did  arrive,  but  whether  in  one  month,  or  five  years  after, 
does  not  appear.  What  may  have  been  the  expectations  of  the 
drawee,  as  to  the  receipt  of  funds  from  the,  drawer,  is  immate- 


OF  MAINLAND.  471 


MURDOCK  v.  WIXTEII. — 1827. 


rial;  they  are  not  even  admissible  evidence  in  this  cause.  But 
'if  they  were,  they  can  have  no  influence  on  those  of  the  draw- 
er— into  whose  expectations  only  is  the  enquiry  to  be  made. 
The  facts  in  the  cases  of  Legge  vs  Thorpe,  12  East,  170,  and 
Claridge  vs  Dal  ton,  4  Maule.  <$•  Sdv?.  22  6,  afford  much  strong- 
er evidence  of  a  reasonable  expectation  in  the  drawers  that 
their  bills  would  be  honoured,  than  those  in  the  present  case; 
yet  there  they  were  adjudged  insufficient.  The  "reasonable 
grounds"  required  by  law  are  not  such  as  would  excite  an  idlo 
hope,  a  wild  expectation,  or  a  remote  probability,  that  the  bill 
might  be  honoured,  but  such  as  create  a  full  expectation,  a  strong 
probability  of  its  payment;  such  indeed  as  would  induce  a  mer- 
chant of  common  prudence  and  ordinary  regard  for  his  com- 
mercial credit,  to  draw  a  like  bill.  The  facts  in  this  case  con- 
stitute no  such  reasonable  grounds.  Wo  therefore  think  that 
the  county  court  erred  in  instructing  the  jury  that  the  plaintift* 
was  not  entitled  to  recover,  and  consequently  reverse  their 
judgment 

JUDGMENT  REVERSED,  AND  PROCEDENDO  AWARDED. 


MURDOCK  vs.  WINTER'S  Adnvr. — June,  1827. 

It  is  an  established  rule  in  pleading,  that  upon  the  argument  of  a  demurrer, 
the  court  will,  notwithstanding  the  defect  of  the  pleading  demurred  to, 
give  judgment  against  the  party  whose  pleading  was  first  defective  ia 
substance;  as  if  a  plea  be  bad,  the  defendant  may  avail  himself  of  any 
substantial  defect  in  the  declaration,  or  if  the  replication  be  bad,  the 
plaintiff  may  avail  himself  of  any  defect  in  the  plea. 

So  where  in  an  action  on  a  promissory  note  payable  four  months  afterdate, 
the  defendant  pleaded  nan  assumpsit  infra  ires  nnnoa,  to  which  the  plain' 
tiff  replied,  that  he  at  the  time  of  making  the  promise,  was  beyond  seas 
and  without  the  jurisdiction  of  the  court,  and  so  remained  and  continued,. 
&c. and  the  defendant  demurred — Judgment  was  rendered  for  the  plain- 
tiff;  for  that  mode  of  pleading  the  act  of  limitations  in  this  case,  is  defec- 
tive. 

•  The  act  of  limitations  begins  to  operate  as  a  bar  from  the  time  the  cause  of 
action  arises,  and  not  from  the  time  of  making  the  promise. 

APPEAL  from  Charles  County  Court.  Action  of  assumpsit. 
The  writ  issued  on  the  llth  of  February  1822.  The  declara- 
tion contained  a  count  on  a  promissory  note,  dated  at  Boston  on 
the  15th  of  July  181 G,  for  §SS,  payable  in  four  months,  with 


472  CASES  IN  THE  COURT  OF  APPEALS 

MURDOCK  "J.   WINTER.  — 1827. 

interest,  executed  by  the  intestate  of  the  defendant,  (the  apj 
pellee,)  to  the  plaintiff,  (the  appellant. )  The  defendant  plead- 
ed non  assurripsit,  and  non  assumpsit  infra  tres  annos.  Is- 
sue  joined  on  the  first  plea;  and  a  replication  to  the  second  pleaf 
stating  that  the  plaintiff,  at  the  time  of  making  the  promise, 
was  beyond  the  seas,  and  without  the  jurisdiction  of  the  court, 
and  remained  and  continued,  &c.  Demurrer  to  the  replication, 
and  joinder  in  demurrer.  The  court  ruled  the  demurrer  good. 
The  plaintiff  then  prayed  the  court  that  the  first  issue  be  tried 
by  the  country.  Which  prayer  the  Court,  [Stephen,  Ch.  J. 
and  Key,  and  Plater^  A.  J.]  refused.  The  plaintiff  excepted; 
and  the  verdict  and  judgment  being  against  him,  he  appealed, 
to  this  court. 

The  cause  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE$. 
MARTIN,  ARCHER,  and  DORSET,  J. 

Slonestrcet,  for  the  Appellant,  contended,  1.  That  the  pleu 
of  non  assumpsit  infra  tres  annos  is  no  answer  to  a  declara- 
tion on  a  promissory  note  payable  four  months  after  date,  as  it 
might  be  true  that  the  defendant  did  not  assume  at  any  time 
within  three  years  before  the  issuing  of  the  original  writ,  and 
still  be  liable.  He  should  have  pleaded  actio  non  accrevit 
infra  ires  annos.  That  this  objection  is  good  on  general  de- 
murrer, needs  no  authority  to  prove. 

2.  That  the  act  of  assembly  of  1818,  ch.  216,  repealing  tire 
savings  in  favour  of  nonresidents,  as  given  in  the  act  of  limita- 
tions, in  its  operation  upon  this  case,  is  unconstitutional  and 
void.  The  note  in  this  case  is  dated  in  1S16,  in  Boston.,  where 
the  plaintiff  then  resided,  and  continued  so  to  reside  until  the 
issuing  of  the  writ.  The  act  of  assembly  taking  away  the 
savings  in  favour  of  nonresidents  passed  the  1.9th  of  February 
1819,  and  therefore  subject  eel  the  note  to  be  defeated  by  the 
defendant's  pleading  the  act  of  limitations 

C.  Do)*sey,  for  the  Appellee. 

ARCHER,  J.  delivered  the  opinion  of  the  court.  It  is  an  es- 
tablished rule  in  plead hg,  that  upon  the  argument  o/  >  '•'  mur- 
Ter  the  court  will,  notwithstanding  the  defect  of  th  '  p'ending 
demurred  to,  give  judgment  against  the  party  whuse  pleading 


OF  MARYLAND.  47o 

MURDOCH  r.  WINTER. — 1827. 

was  first  defective  in  substance.  Duppa  vs  Mayo,  1  Sound. 
285,  (note  5. )  Chitt.  Plead.  647.  As  if  a  plea  be  bad,  the 
defendant  may  avail  himself  of  any  substantial  defect  in  the  de- 
claration, or  if  the  replication  be  bad,  the  plaintiff  may  avail 
himself  of  any  defect  in  the  plea.  Here  the  replication  is  de- 
murred to,  and  although  it  may  be  defective,  the  plaintiff  in- 
sists that  the  defendant  has  in  his  plea  committed  the  first  fault 
in  pleading;  and  this  objection  leads  us  to  the  inquiry,  whether 
the  defendant's  plei  is  maintainable? 

The  suit  is  instituted  for  the  recovery  of  money  due  on  a 
promissory  note,  payable  in  four  months;  the  declaration  is  in 
the  usual  form,  and  to  this  declaration  the  defendant  has  plead 
non  assumpsit  infra  Ires  annos. 

This  mode  of  pleading;  the  statute  of  limitations  is  in  many 
cases  not  available;  and  Williams,  in  his  notes  to  Hodsden  vs 
ffctrridge,  2  Saundere,  G3,  (note  6,J  assigns  as  a  reason,  that 
if  the  cause  of  action  accrued  within  six  years,  it  is  immaterial 
when  the  promise  was  made,  because  the  statute  operates  as  a 
bar  only  from  the  time  the  cause  of  action  arose,  and  not  from, 
the  time  of  making  the  promise,  the  words  of  the  statute  being 
"within  six  years  next  after  the  cause  of  action  accruing,"  and 
not  after,  and  he  puts  these  cases  in  illustration  of  the  princi- 
ple. If  a  promissory  note  were  made  seven  years  ago  to  pay 
money  within  three  years  after,  the  statute  is  no  bar;  so  if  it 
were  made  seven  years  ago  to  pay  money  within  three  months 
after,  though  the  statute  would  be  a  bar,  yet  the  defendant  must 
not  plead  non  assumpsit  infra  sex  annos,  for  that  would  be 
bad;  but  the  plea  must  be  causa  actionis  nun  accrevit  infra 
sex  annos.  This  last  case  is  precisely  the  one  presented  here 
for  our  consideration,  and  must  have  the  same  rule  applied  to 
it;  for  the  phraseology  of  the  English  statute,  so  far  as  con- 
cerns this  point,  is  precisely  in  conformity  with  our  statute  of 
limitations.  And  it  is  recommended  in  the  note  referred  to,  as 
•the  safest  and  best  mode  in  all  cases  of  assumpsit  where  limi- 
tations attach  to  plead  actio  non  accrevit,  Sf-c. 

The  plea  then  being  substantially  defective,  the  judgment  of 
the  court  below  should  have  been  for  the  plaintiff  upon  this  de- 
murrer, instead  of  the  defendant.      And  the  court  should  have 
empannelled  a  jury  to  try  the  issue  on  the  plea  of  non  assump- 
VOL.  i.  60 


474  CASES  IN  THE  COURT  OF  APPEALS 

DUVALL  v.   HARWOOD. — 1827. 

sit,  which  would  have  been  the  only  issue  before  them,  had  their 
judgment  been  correct  upon  the  demurrer  to  the  replication. 

This  being  our  opinion  upon  the  demurrer,  the  cause  must 
be  remanded  to  Charles  county  court  by  procedcndo.  And 
it  is  in  this  aspect  of  the  case  unnecessary  to  institute  any  in- 
quiry into  the  very  important  point  which  has  been  raised  by 
the  appellant,  whether  the  act  of  assembly,  taking  away  from 
the  plaintiff  the  savings  of  the  statute,  be  constitutional,  so  far 
as  respects  his  claim,  which  originated  before  the  passage  of  the 
repealing  law?  Nor  shall  we  venture  to  intimate  any  opinion 
on  that  subject,  especially  in  this  case  which  has  been  submit- 
ted to  our  consideration,  without  argument  on  the  question. 

JUDGMENT  REVERSED,  AND  PUOCEDEXDO  AWARDED, 


DUVALL,  et  ux.  vs.  HARWOOD'S  Adm'rs. — June,  1S27. 

An  intestate  had  several  brothers  and  a  sister,  who  died  before  him,  leaving1 
children  and  grandchildren,  and  one  brother  who  survived  him,  but  who 
died  before  the  distribution  of  the  intestate's  estate.  In  the  distribution 
of  the  intestate's  personal  estate,  it  was  decreed,  that  the  children  of  his 
sister,  and  the  children  of  each  of  his  brothers,  who  died  before  him. 
should  receive  the  share  to  which  such  sister  or  brother,  if  she  or  he  had 
survived  the  intestate,  would  have  been  entitled,  and  to  the  exclusion  of 
any  grandchildren  of  such  sister  or  brother  of  the  intestate — such  grand- 
children being1  the  children  of  a  son  or  daughter  of  the  said  sister  or  bro- 
ther of  the  intestate,  and  who  died  before  him.  And  that  the  share  of 
the  brother  who  survived  the  intestate,  is  payable  to  the  executor  or  ad- 
ministrator of  such  brother.  An  intestate  died  without  descendants— a 
sister,  and  the  children  and  grandchildren  of  several  deceased  brothers 
and  sisters  surviving  him.  Of  one  of  the  brothers  no  child  was  alive  at 
the  death  of  the  intestate,  but  several  of  the  grandchildren  of  that  bro- 
ther were  then  living,  the  plaintiff  being  one — Held,  that  he  was  not  en- 
titled to  any  part  of  the  intestate's  personal  estate.  (Note.) 

APPEAL  from  a  decree  of  the  Orphans  Court  of  ,ftnnc-,ftrun~ 
del  County.  The  administrators  of  Benjamin  ffarwood,  de- 
ceased, petitioned  the  orphans  court  to  order  a  distribution  of 
all  the  personal  assets  in  their  hands,  amongst  the  legal  repre- 
sentatives of  the  deceased,  according  to  law.  The  orphans 
court,  on  the  26th  of  May  1827,  having  considered  the  petition, 
and  being  satisfied  that  the  said  Benjamin  Parwood  left,  at 
the  time  of  his  death,  one  brother,  Richard  Harwood,  who  is 


OF  MARYLAND.  475 


DCVALL  r.  HARWOOD. — 1827. 


since  dead,  leaving  children,  and  other  descendants;  and  that 
Thomas,  William,  Nicholas,  John  and  Samuel  Harwood, 
who  were  brothers  of  the  said  Benjamin,  and  Mary  Stockett, 
who  was  a  sister  of  the  said  Benjamin,  departed  this  life  in 
the  lifetime  of  the  said  Benjamin,  leaving  children,  and  other 
descendants;  and  it  being  proved  to  the  court  that  the  said  Ri- 
chard Harwood  was  indebted  unto  the  said  Benjamin  in  his 
lifetime  in  a  large  sum  of  money,  and  that  the  said  debt  is  still 
due  and  owing,  the  court  do  adjudge  and  order,  that  the  said 
Richard's  distributive  share  of  the  said  Benjamin's  estate  is 
not  in  any  manner  liable  to  the  payment  of  the  said  debt.  And 
the  court,  therefore,  order  that  the  said  administrators  do  make 
distribution  of  the  personal  assets  in  their  hands  on  the  4th  of 
June  next,  and  pay  over  the  said  assets  as  follows:  One  seventh 
part  or  share  to  Richard  Harwood  of  Thomas,  who  is  the  only 
child  of  the  said  Thomas  Hamvood,  brother  of  the  deceased. 
One  other  seventh  part  or  share  to  the  legal  representatives  of 
the  said  Richard  Harwood,  deceased.  One  other  seventh  part 
or  share  to  the  legal  representatives  of  the  said  William  Har- 
wood,  deceased.  One  other  seventh  par*  or  share  to  the  legal 
representatives  of  the  said  Nicholas  Harwood,  deceased.  One 
other  seventh  pait  or  share  to  the  legal  representatives  of  the 
said  John  Harwood,  deceased.  One  other  seventh  part  or 
share  to  the  legal  representatives  of  the  said  Samuel  Harwood, 
deceased.  And  one  other  seventh  part  or  share  to  the  legal  re- 
presentatives of  the  said  Mary  Stockett.  And  the  court  do 
consider  that  the  legal  representatives  of  the  said  Richard, 
William,  Nicholas,  John,  Samuel  and  Mary,  are  their  chil- 
dren, and  that  if  any  of  the  said  children  shall  have  died  be- 
fore the  death  of  the  said  Benjamin,  leaving  children,  or  other 
descendants,  the  said  children  and  descendants  are,  by  repre- 
sentation, entitled  to  the  share  or  shares  to  which  their  parent 
or  parents  would  have  been  entitled,  in  case  the  said  parent  or 
parents  had  survived  the  said  Benjamin.  For  example,  the 
said  Nicholas  Harwood  having  died  as  aforesaid  in  the  life- 
time ot  the  said  Benjamin,  leaving  Sarah  Duvall  and  Mary 
Green,  daughters,  and  Henry  S.  Harwood,  a  son,  and  the  said 
Henry  S.  Harwood  having  also  died  in  the  lifetime  of  the  said 
Benjamin,  leaving  children,  the  court  d»  consider  and  adjudge 


476  CASES  IN  THE  COURT  OF  APPEALS 

DPVALL  v.  HAHWOOD — 1827. 

the  seventh  part  or  share,  before  ordered  to  be  paid  to  the  legal 
representatives  of  the  said  Nicholas,  shall  be  distributed — one 
third  part  thereof  to  the  said  Sarah  Ihtvall;  one  other  third 
part  to  Mary  Green,  and  the  remaining  third  part  to  and 
amongst  the  children  of  the  said  Henry  S.  Ilarwood.  And  in 
case  any  of  the  legal  representatives  of  the  said  Richard,  IViU 
Ham,  Nicholas,  John  and  Samuel  Harwood,  and  Mary  Stock- 
eft,  shall  have  died  since  the  death  of  the  said  Benjamin,  then 
the  share  of  the  representatives  so  dying  shall  be  paid  over  to 
the  person  or  persons  who  shall  be  entitled  to  distribution  of 
the  personal  estate  of  the  said  representative. 

From  this  decree  Lewis  Duvall,  the  husband  of  Sarah  Du~ 
vail  above  mentioned,  for  himself,  and  his  said  wife,  appealed 
to  this  court. 

The  cause  was  about  to  be  argued  before  BUCHANAN,  Ch.  J. 
and  EARLE,  MARTIN,  STEPHEN,  and  DORSEY,  J.  by 

Marriott  and  Speed,  for  the  Appellants,  when  they  were 
stopped  by  the  court,  who  stated  that  the  only  question  in  the 
case  wrich  this  court  could  act  upon,  had  been  decided  in  Ro- 
bins et  al.  vs  The  Slate  use  Polk,  (a). — Decreed,  that  the 

Ca.J  The  case  of  ROBINS,  et  al.  t-sTHE  STATE  use  of  POLK  was  decided 
at  June  term  1809,  on  an  appeal  from  Worcester  county  court.  It  was  an 
action  of  debt  on  the  administration  bond  given  on  the  estate  of  Zadoh 
Purnell,  deceased.  The  following  case  was  stated  for  the  opinion  of  the 
court,  viz  Col.  Zadofe  Purnell  died  intestate  in  January  1305,  and  without 
children  or  descendants  of  children.  At  the  time  of  his  death  he  left  one 
sister  living,  and  the  legal  descendants  of  three  brothers  and  three  sisters, 
who  were  dead,  to  wit,  John,  who  had  no  child  living  at  the  death  of  the 
intestate,  but  who  had  seven  grandchildren,  one  of  whom  is  the  equitable 
plaintiff  Thomas,  who  left  five  children  and  four  grandchildren.  William, 
who  left  three  children  and  one  grandchild.  Jlrralanta,  who  left  four  chil 
dren  and  six  grandchildren.  Zepporah,  who  left  eight  grandchildren;  and 
Elizabeth,  who  left  seven  children  and  three  grandchildren.  The  question 
was,  whether  or  not  the  equitable  plaintiff  was  entitled  to  a  distributive 
share  of  the  personal  estate  of  Zcdok  Purnell,  deceased?  The  County  Court, 
[Done,  A.  J  ]  gave  judgment  for  the  plaintiff.  From  which  judgment  the 
defendants  appealed  to  this  court.  The  cause  was  argued  at  the  preceding 
June  term  before  TILGHMAN,  BUCHANAN,  NICHOLSON  and  GANTT,  J.  by  Bui- 
titt  and  Whittington,  for  the  Appellants,  and  by  J.  Eayly  and  W.  B.  Mar- 
tin,  for  the  Appellee;  and  at  June  term  1809,  THE  COTJHT,  (except  NICHOI< 
•OK,  J.)  dissented  from  the  opinion  of  the  court  below?  and 

JUDGMENT  BEVER6EB. 


OF  MARYLAND.  477 


FAUEHWEIH  v    BRCNSEK  — 


decree  of  the  orphans  court  be  reversed  with  costs  to  the  ap- 
pellants.— Decreed  also,  that  in  the  distribution  of  the  person- 
al estate  of  Benjamin  Harwood,  the  intestate,  the  children  of 
his  sister,  and  the  children  of  each  of  his  brothers,  who  died 
before  the  intestate,  shall  receive  the  share  to  which  such  sister 
or  brother,  if  she  or  he  had  survived  the  intestate,  would  have 
been  entitled,  and  to  the  exclusion  of  any  grandchildren  of  such 
sister  or  brother  of  the  intestate — such  grandchildren  being  the 
children  of  a  son  or  daughter  of  the  said  sister  or  brother  of 
the  intestate,  and  who  died  before  the  intestate. — Decreed  also, 
that  the  share  to  which  Richard  Harwood,  brother  of  the  in- 
testate, and  who  survived  the  intestate,  but  died  before  a  dis- 
tribution of  his  estate  took  place,  is  payable  over  to  his  execu- 
tor or  administrator,  and  not  to  his  children,  as  directed  by  the 
decree  of^the  orphans  court — this  court  not  meaning  to  inter- 
fere in  any  manner  with  the  question  of  retainer  by  the  admi- 
nistrators of  Benjamin  Harwood,  for  the  claim  they  have,  if 
any,  against  the  said  Richard  Harwood,  deceased,  the  proper 
parties  not  being  before  the  court  to  justify  them  in  deciding 
on  that  question. 

DECREE  REVERSED,  &C. 


SAUERWEIN  vs.  BRUNNER. — June,  1827. 

A  promissory  note  for  $1,745,  payable  90  days  after  date,  made  by  B  at  the 
request  of  K,  and  for  his  accommodation,  and  by  K  token  to  G,  who  en- 
dorsed it  with  F.,  and  then  delivered  by  G  to  M,  who  negotiated  it  with 
H  for  the  sum  of  $1,648  08,  which  was  paid  to  E,  is  void  for  usury. 

AVhere  a  note  commences  in  usury;  or  in  other  words,  where  a  note  is  taint- 
ed with  usury  at  its  birth,  when  it  first  becomes  legally  efficient  and 
operative  so  as  to  give  to  the  holder  a  right  of  action  upon  it,  no  subse- 
quent holder,  for  a  valuable  consideration  without  notice  of  such  usury,  can 
maintain  a  suit  upon  it — such  note  being  declared  by  statute  null  and  void. 

A  note  endorsed  for  the  accommodation  of  the  maker,  and  passed  by  him 
as  a  security  for  a  usurious  loan,  is  a  usurious  contract  in  its  inception;  as 
the  lender  is  in  fact  to  be  considered  the  first  holder  of  the  note. 

The  terms  to  negotiate  a  note,  import  the  passing  it  for  money;  and  to  pas* 
a  note  for  money,  means  to  transfer  such  note  to  another  proprietor. 

APPEAL  from  Baltimore  County  Court.  Jlssumpsit  by  the 
holder,  (now  appellant,)  against  the  maker,  (the  appellee,)  of  a 
promissory  note,  payable  to  George  J.  Brawn>  and  by  him  en- 


478  CASES  IN  THE  COURT  OF  APPEALS 

SAUERWEIN  v.  BRUNNER. — 1827. 

dorscd  to  Martin  Eichelberger,  who  endorsed  it  to  the  plain- 
tiff. The  case  is  fully  stated  by  the  judge  who  delivered  the 
opinion  of  this  court. 

The  cause  was  argued  at  the  last  June  term,  before  BUCHANAN, 
Ch.  J.  and  MARTIN,  STEPHEN,  and  DORSET,  J. 

Mayer,  and  Cruse,  for  the  Appellant,  contended,  1.  That 
the  time  at  which  the  instrument,  on  which  this  action  is  found- 
ed, became  a  complete  and  perfect  note,  was  a  question  of  fact 
for  the  jury,  and  not  a  question  of  law,  and,  therefore,  that  the 
court  below  erred  in  giving  the  directions  prayed  to  the  jury. 

2.  That  if  it  be  a  question  of  law,  yet,  on  the  first  delivery 
of  the  said  note  by  its  maker  to  Martin  Eichelberger,  the  per- 
son for  whose  accommodation  it  was  drawn,  it  became  a  com- 
plete and  valid  note. 

3.  That  as  no  usurious  consideration  passed  between  any  of 
the  said  parties  at  the  time  of  said  delivery,  no  subsequent 
usurious  loan  made  on  said  note  could  vitiate  it,  and  that  it  was 
therefore  valid  in  the  hands  of  a  subsequent  bonu  fide  holder 
for  a  full  and  valuable  consideration. 

They  cited  Parrvs  Eliason,  1  East,  92.  Dagnallvs  Wig- 
ley,  1 1  East,  42.  Daniel  vs.  Cartony,  1  Esp.  Rep.  274.  Foltz 
vs  Mey,  1  Bay's  Rep.  4S6.  Barclay,  qui  tarn  vs  Walmsley, 
4  East,  55.  Bowyer  vs  Bampton,  2  Stra.  1155.  Lowe  vs 
Waller,  2  Doug.  735.  Young  vs  Wright,  1  Campb.  139, 141. 
Jlckland  vs  Pearce,  2  Campb.  599.  Lowes  vs  Mazzaredo, 
1  Stark.  Rep.  385,  (2  Serg.  fy  Low.  438 .)  Wilkie  vs  Roose- 
velt,  3  Johns.  Cas.  66.  Jones  vs  Hake,  2  Johns.  C as.  QQ.  Ben- 
nett vs  Smith,  15  Johns.  Rep.  355.  Churchell  vs  Suter,  4 
Mass.  Rep.  1 56.  Powell  vs  Waters,  17  Johns.  Rep.  181.  Mar- 
vin vs  M'Cullum,  20  Johns.  Rep.  288.  Durham  vs  Dey, 
13  Johns.  Rep.  40.  Munn  vs  The  Commission  Company, 
15  Johns.  Rep.  44.  Smith  vs  Beach,  3  Day's  Rep.  268.  Ellis 
vs.  Warn,  Cro.  Jac.  33.  Burt  vs  Gwinn,  4  Harr.  <§•  Johns. 
507.  Jones  vs  Davison,  1  Holt's  Rep.  256,  (3  Serg.  <$*  Low. 
92.  J  Lucas  vs  Latour,  G  Harr.  $  Johns.  100. 

Mitchell,  R.  B.  Magruder,  and  Kennedy,  for  the  Appellee, 
cited  Lowe  vs  Waller,  2  Doug.  736.  Nevison  vs  Whitley,  Cm 


OF  MARYLAND.  479 


S  r.  BBUNNER. — 1827. 


Car.  501.    Booth  vs  Cooke,  1  Freem.  264.    Parr  vs  Eliason, 

1  East,  92.    Heylyn  vs  Jldamson*  2  Burr.  676.   *ftcklandvs 
Pearce,  2  Campb.  599.  Munnvs  The  Commission  Company, 
15  Johns.  Rep.  44.     Powell  vs  Waters,  17  Johns  Rep.  176. 
Marvin  vs  M'Cullum,  20  Johns.  Rep.  258.     2  Stark.  Evid. 
250.     Chitty  on  Bills,  78,  f  am/  notes.  ^     Lansing  vs  Gainet 

2  Johns.  Hep.  303,  304.    Lowes  vs  Mazzaredo,  2  Serg.  <§•  Loio. 
138.    Jones  vs  Davison,  3  »9crg-.  <§•  Z/ow.  99,  (note.)    Webber 
vs  Maddocks,  3  Campb.    1.  cited  in  Chitty  on  Bills,  132,  b. 
1  Si  ark.  Evid.  414.     Bank  of  Utica  vs  Wager,  2  Cowen's 
Rep.  763.     New- York  Fire  Insurance  Company  vs  Ely,  Ib. 
705,706,707.     Chitty  on  Bills,  105,  (note.}   100,  (note  5.) 
Tyson  vs  Richard,  3  Harr.  <§*  Johns.  111. 

Curia  adv.  vulf. 

STEPHEN,  .T.  at  this  term,  delivered  the  opinion  of  the  court. 
On  the  trial  of  this  case  in  the  court  below,  the  plaintiff,  (now 
appellant,)  gave  in  evidence  the  following  promissory  note: 
''Baltimore,  Feb'y.  26th,  1S19.  Ninety  days  after  date  I 
promise  to  pay  George  J.  Brown,  or  order,  seventeen  hundred 
and  forty-five  dollars,  and  twenty  cents,  for  value  received;" 
which  note  was  signed  by  the  defendant,  ^Ihe  appellee,)  and 
was  endorsed  by  George  J.  Brown,  Martin  Eichelberger,  and 
the  plaintiff,  and  proved  the  handwriting  of  the  maker  and  en- 
dorsers respectively;  and  further  proved,  that  the  said  promis- 
sory note  was  passed  bona  fide,  and  in  the  due  course  of  trade, 
and  tor  a  valuable  consideration,  into  the  hands  of  the  plaintiff; 
and  here  the  plaintiff  rested  his  case.  Whereupon  the  defen- 
dant called  Martin  Eichelberger,  whose  name  is  on  the  note, 
who  being  released,  was  admitted  to  be  a  competent  witness, 
who  testified,  that  having  been  pressed  for  money,  at  the  time 
this  note  was  made,  he  applied  to  the  defendant  to  lend  him, 
for  his  sole  accommodation,  the  defendant's  note,  to  be  nego- 
tiated in  order  to  raise  money  for  his  use.  He  further  proved 
by  said  witness,  that  the  defendant  complied  with  his  request, 
and  that  he  the  witness  applied,  with  the  note,  to  George  J. 
JBroivn,  for  a  loan  of  money,  which  Brown  agreed  to  make 
him  upon  the  said  note,  and  did  accordingly  lend  the  witness 
oash  to  the  amount  of  $1,G4S  OS,  which  was  all  that  he  ever 


480  CASES  IN  THE  COURT  OP  APPEALS 

SACEHWEIX  v.   BHUSSKH  — 1827. 

received  for  or  on  account  of  the  said  note.  That  Brown  de- 
ducted for  the  use  of  the  money  loaned,  $91  12,  which  the 
witness  and  Brown  then  understood  to  he  the  discount  for  in- 
terest, and  for  no  other  purpose.  On  being  cross  examined, 
the  witness  further  said,  that  the  note  was  drawn  in  blank,  with- 
out the  name  of  the  payee  inserted  in  it,  when  he  passed  it  to 
Brown,  having  first  inserted  his  name  as  payee,  and  that  he 
considered  Brown  as  the  lender  of  the  money,  and  not  as  his 
agent  to  procure  a  loan  for  him  on  the  note,  for  a  commission. 
That  the  note  was  first  negotiated  for  the  purpose  of  raising 
money  at  usurious  interest,  and  that  the  above  mentioned  sum 
of  $1, 648  08,  was  paid  by  Brown  to  him,  a  few  days  after  he 
had  delivered  the  note  to  Brown. 

The  plaintiff  then  produced  as  a  witness,  George  J.  Brown, 
who  testified  that  he  ha.l  no  recollection  whatever  of  the  said 
note,  on  which  this  suit  was  brought,  other  than  from  his  name 
being  endorsed  thereon  in  his  own  handwriting;  that  he  had 
no  recollection  of  having  discounted  said  note,  or  any  other  of 
said  Brunner's  notes,  at  usurious  interest,  his  pecuniary  affairs 
being  then  much  embarrassed,  so  that  he  was  compelled  to 
scrape  together  all  the  means  in  his  power  for  his  own  use; 
that  he  has  discounted  Brunner's  note  at  l-.ink  for  the  ust  oi 
the  said  Eichelberger,  and  that  from  his  embarrassed  situation 
at  that  time  his  memory  might  have  been  very  inaccurate.  The 
defendant  then  offered  John  M'Fadon,  a  competent  witness, 
who  stated  that  he  did  not  particularly  recollect  the  note  in 
question,  but  that  the  memorandum,  then  shown  to  him,  was  in 
his  handwriting,  that  it  corresponded  precisely  with  the  note, 
and  that  he  believes  it  related  to  that  identical  note.  That  thrt 
money  mentioned  in  the  memorandum,  he  remembered  having 
received  from  one  He.idlc.lt  ack,  who  paid  it  to  him  after  de- 
ducting the  usurious  rate  of  interest,  mentioned  in  the  memo- 
randum, and  that  he  carried  the  money  to  Brown,  and  gave  it 
to  him  with  the  memorandum.  Whereupon  the  defendant 
prayed  the  direction  of  the  court  to  the  jury,  that  if  the  jury 
believed  that  the  note  in  question  was  made  for  the  purpose  of 
raising  money  for  the  accommodation  of  Martin  Eichelber- 
ger,  and  without  any  value  being  received  by  Andrew  Brun- 
ncr,  and  that  it  was  passed  by  Martin  Eichelberger  to  George. 


OF  MA.BYLAND.  481 


SACEHWEIX  r.   BRCTSKEB. — 1827. 


J.  Brown,  at  a  usurious  rate  of  interest,  then  it  was  void,  even 
if  it  passed  afterwards,  into  the  hands  of  a  bona  fide  holder, 
and  the  plaintiff  is  not  entitled  to  recover.  And  the  defendant 
also  prayed  the  court  to  direct  the  jury,  that  if  they  should  be- 
lieve that  the  said  note  was  made  by  Brunner  without  consi- 
deration, for  the  accommodation  of  Martin  Eichelberger,  and 
by  him  was  put  into  the  hand*  of  George  J.  Brown,  that  he 
might  procure  a  loan  of  money  thereon  for  said  Eichelber- 
ger, and  by  George  J.  Brown  was  accordingly  negotiated,  to 
raise  money,  and  that  the  sum  of  31648  OS  only,  was  raised 
thereon  by  George  J.  Brown,  and  paid  over  by  him  to  Martin 
Eichelberger,  then  the  plaintiff  is  not  entitled  to  recover,  not- 
withstanding he  was  not  the  lender  of  the  money,  but  a  subse- 
quent holder  for  a  valuable  consideration,  without  notice  of  such 
previous  usury.  And  the  defendant  further  prayed  the  direc- 
tion of  the  court  to  the  jury,  that  if  the  jury  should  believe  that 
the  note  was  made  by  Brunner,  without  consideration,  for  the 
accommodation  of  Martin  Eichelberger,  and  by  Martin  Eich- 
elberger was  put  into  the  hands  of  George  J.  Brown,  without 
any  value  paid  therefor  by  Brown,  that  he  might  procure  a 
loan  of  money  thereon  for  Martin  Eichelberger,  and  by 
George  J.  Brown  was  put  into  the  hands  of  the  aforesaid  John 
WFadon,  a  broker,  to  negotiate  to  any  purchaser,  for  the  pur- 
pose aforesaid,  who  negotiated  the  same  at  a  discount  of  $97 
12,  to  one  Heidleback,  who  became  the  first  holder  thereof  for 
value,  and  that  the  proceeds  thereof,  after  deducting  the  interest 
aforesaid,  and  his  own  commission  as  broker,  was  paid  over  by- 
said  M'Fadon  to  George  J.  Brown,  who  paid  the  same  over 
to  said  Eichelberger,  that  then  the  said  note  was  usurious  and 
void  in  its  inception,  and  the  plaintiff  not  entitled  in  law  to  re- 
cover, notwithstanding  the  jury  should  be  satisfied  that  he  was 
not  the  lender  of  the  money,  but  a  subsequent  holder  for  a  va- 
luable consideration,  without  notice  of  such  previous  usury. 
Upon  these  several  prayers,  the  court  fa)  gave  the  instructi- 
ons prayed  for;  and  the  plaintiff  exceptcd.  And  the  question 
to  be  decided  by  this  court  is,  whether  there  is  error  in  any  of 
the  opinions  given  by  the  court  below?  Upon  an  examination 
of  the  authorities  relative  to  this  subject,  the  principle 

fa.J  Archer,  Ch.  J.  and  Hanson  and  Ward,  A.  J. 
VOL.  i.  61 


482  CASES  IN  THE  COURT  OF  APPEALS 

SAUKRWEIX  y.  BRUNXER. — 1827. 

to  be  well  settled,  that  where  a  note  commences  in  usury;  or, 
in  other  words,  where  a  note  is  tainted  with  usury  at  its  birth, 
when  it  first  becomes  legally  efficient  and  operative,  so  as  to 
give  to  the  holder  a  right  of  action  upon  it,  no  subsequent  hold- 
er, for  a  valuable  consideration,  without  notice  of  such  usury, 
can  maintain  a  suit  upon  it — such  note  being  declared  by  sta- 
tute null  and  void.  In  Munn  vs  The  Commission  Company, 
15  Johns.  Rep.  55,  Spencer,  Justice,  in  delivering  the  opinion 
of  the  court,  says  "the  true  test,  in  distinguishing  between  a 
case,  where  the  discount  of  a  bill,  at  a  higher  premium  than  the 
legal  rate  of  interest,  will  be  deemed  legal,  by  considering  it  the 
purchase  of  a  perfect  bill,  and  where  it  will  be  illegal,  as  a  usu- 
rious loan  of  money,  is  to  ascertain  whether  the  bill  was  a  per- 
fect  and  available  bill  to  the  party  holding  it."  He  says  "the 
principle  is  too  well  settled  to  be  questioned,  that  a  bill,  free 
from  usury,  in  its  concoction,  nay  be  sold  at  a  discount,  by  al- 
lowing the  purchaser  to  pay  less  for  it,  than  it  would  amount  to 
at  the  legal  rate  of  interest,  for  the  time  the  bill  has  to  run. 
The  reason  is  obvious;  as  the  bill  was  free  from  usury,  between 
the  immediate  parties  to  it,  no  after  transaction  with  another 
person  can,  as  respects  those  parties,  invalidate  it.  And  I  take 
it  to  be  equally  clear,  that  if  a  bill,  or  note,  be  made  for  the  pur- 
pose of  raising  money  upon  it,  and  it  is  discounted  at  a  higher 
premium  than  the  legal  rate  oi  interest,  and  where  none  of  the 
parties  whose  names  are  on  it,  can,  as  between  themselves, 
maintain  a  suit  on  the  bill  when  it  becomes  mature,  provided  it 
had  not  been  discounted,  that  then  such  discounting  of  the  bill 
would  be  usurious,  and  the  bill  would  be  void."  This  princi- 
ple is  also  recognized  and  adopted  by  the  court  in  Powell  vs 
Waters,  17  Johns.  Rep.  181. 

The  note  in  question  was  made  by  Brunner  for  the  accom- 
modation of  Eichelberger,  and  no  right  of  action  ever  grew 
out  of  it,  or  attached  upon  it,  in  favour  of  any  holder,  until  it 
was  discounted  at  a  usurious  rate  of  interest,  either  by  George 
J.  Brow<it  according  to  the  statement  of  facts  upon  which  the 
first  prayer  to  the  court  was  founded;  or  according  to  the  state- 
ment contained  in  the  second  prayer,  until  it  was  discounted  at 
illegal  interest  by  the  person  to  whom  Brown  applied  as  the 
agent  of  Eichelberger;  or  according  to  the  statement  of  facts 


OF  MARYLAND^  483 


SACEIIWEIN  v.  BnuNJfKR. — 1827. 


contained  in  the  third  prayer,  until  it  was  discounted  at  unlaw- 
ful interest  by  Heidleback,  through  the  agency  oi  Brown,  (or 
the  benefit  of  Eichelberger.  Wilkie  vs  Roosevelt,  3  Johns. 
Cases,  66. 

It  has  been  contended,  that  the  facts  upon  which  the  second 
prayer  was  made  to  the  court,  if  true,  do  not  prove  the  contract 
to  be  illegal  and  usurious.  That  prayer  is  in  the  following 
words:  "That  if  the  jury  should  believe  that  the  said  note  was 
made  by  Brunner,  without  consideration,  for  the  accommoda- 
tion of  Martin  Eichelberger,  and  by  Martin  Eichelberger 
was  put  into  the  hands  of  George  J.  Brown,  that  he  might  pro- 
cure a  loan  of  money  thereon  for  Martin  Eichelberger,  and 
by  George  J.  Brown  was  accordingly  negotiated  to  raise  mo-- 
ney,  and  that  the  sum  of  $1648  08  only  was  raised  thereon  by 
George  J.  Brown,  and  paid  over  by  him  to  Martin  Eichel- 
berger, then  the  plaintiff  is  not  entitled  to  recover,  notwith- 
standing he  was  not  the  lender  of  the  money,  but  a  subsequent 
holder  for  a  valuable  consideration,  without  notice  of  such  pre- 
vious usury."  If  the  note  was  negotiated  by  George  J.  Brown, 
and  the  sum  of  $1643  08  only,  was  raised  thereon,  ft  certainly 
shows  that  the  transaction  was  an  usurious  one.  What  is  the 
import  or  meaning  of  the  terms  "to  negotiate  a  note?"  Ac- 
cording to  the  meaning  given  to  them  by  lexicographers,  they 
import  the  passing  a  bill  or  draft  for  money,  and  that  to  pass  a 
bill  or  draft  for  money,  means  to  transfer  such  bill  or  draft  to 
another  proprietor.  The  prayer  then  in  substance  was,  that  if 
George  J.  Brown  transferred  Eichelberger" s  entire  interest  in 
this  note,  amounting  to  $1745  20,  payable  ninety  days  after 
date,  and  only  raised  by  such  transfer  the  sum  of  Sltf-IS  08, 
then  the  plaintiff  was  not  entitled  to  recover.  Can  it  for  o 
ment  be  contended  that  such  a  dealing  between  the  parties  does 
not  present  a  c  ise  of  usury? 

A  note  endorsed  for  the  accommodation  of  the  n-aker,  and 
passed  by  him  as  security  for  an  usurious  loan,  is  an  u^uri  us 
contract  in  its  inception,  as  the  lender  is  in  fact  to  be  co.is.uer- 
ed  the  first  holder  of  the  note.  This  principle  is  established  in 
Jones  vs  Hake,  2  JoJins.  Cas.  60.  The  judge  wl  o  delivered 
the  opinion  of  the  conn,  makes  the  following  remarks:  "The 
note  in  question  was  made  by  JValkins,  and  endorsed  by  the 


<J84  CASES  IN  THE  COURT  ©P  APPEALS 

OWINGS  v.   OWINGS. — 1827. 

persons  whose  names  appear  on  it,  for  the  accommodation  of 
Watkins  alone  No  money  was  paid,  or  value  given,  by  any 
of  the  endorsers.  If  the  transaction  be  viewed  in  its  true 
light,  it  was  a  contract  made  through  the  agency  of  Haskin, 
(who  was  a  money  broker,)  between  Watkins  on  the  one  part, 
and  the  person  who  loaned  the  money,  and  took  the  note  as  his 
security,  on  the  other.  The  lender  was  in  reality  the  first  hold- 
er of  the  note,  for  the  value  given,  whatever  that  may  have 
been."  He  then  says,  < 'There  can  be  no  doubt,  but  that  the 
contract  was  usurious,  and  the  note  therefore  void." 

DORSET,  J.  dissented  in  part. 

JUDGMENT  AFFIRMED,   (a.) 

(*a.J  The  rule  that  a  negotiable  instrument,  which  commenced  in  usti- 
ly,  is  void,  even  in  the  hands  of  a  bona  fide,  holder,  has  been  qualified  by 
the  act  of  1824,  ch.  200,  which  declares  that  nothing1  in  the  usury  act  of 
1704,  shall  "destroy  the  right  to  sue  and  recover,  by  any  legal  or  equitable 
assignee,  endorsee,  or  holder  of  any  bond,  bill  obligatory,  bill  of  exchange, 
promissory  note,  or  other  negotiable  instrument."  Such  persons  having1 
"received  the  same  for  a  bona  fide  and  legal  consideration,  without  notice 
of  any  usury  in  the  creation  or  subsequent  assignment  or  negotiation  there- 
of." 


OWINGS'S  Ex'rs.  vs.  OWINGS. — June,  1827. 

A  promise  by  a  debtor  to  his  creditor  to  pay  his  debt  to  a  third  person,  will 
not  enable  such  person  to  maintain  an  action  at  law,  in  his  own  name,  for 
its  recovery. 

\Vhere  one  person  pays  money  to  another  for  the  use  of  a  third,  or  where  a 
person,  having  ready  money  belonging  to  another,  agrees  with  that  other 
to  pay  it  over  to  a  third,  in  both  these  cases  an  action  may  be  brought  in 
the  names  of  the  persons  beneficially  interested. 

A  promise  to  one  to  pay  a  sum  of  money  to  several  other  persons  in  equal 
portions,  where  it  was  not  the  intention  of  the  contracting  parties  that 
such  other  persons  should  receive  or  recover  by  law,  the  entire  sum,  and 
then  divide  it  among  themselves,  if  the  foundation  of  an  action  at  all, 
will  confer  a  right  to  maintain  a  separate  action  for  each  part. 

Neither  a  devise  of  land,  nor  a  legacy  of  a  less  amount  than  the  sum  due,  is 
considered  in  law  a  satisfaction  of  a  pecuniary  debt. 

It  is  not  consistent  with  the  policy  of  the  law  to  encourage  agreements,  by 
which  the  right  to  administer  on  the  estates  of  deceased  persons,  is  de- 
clined in  favour  of  one,  who  contracts  to  pay  the  declining  party,  for  per- 
mission  to  administer,  all  the  commissions  allowed  for  the  settlement  of 
such  estates,  as  in  bad  hands  the  practice  might  lead  to  gross  violations 
of  trusts,  and  the  most  pernicious  consequences. 


OF  MARYLAND. 


OWINGS  v.  OWINGS. — 1827 


ERROR  to  Anne-Jlrundd  County  Court.  Jlssumpsit  for 
money  lent;  for  money  had  and  received,  and  on  an  insimul 
comput assent.  Non  assumpsit  pleaded,  and  issue  joined. 

At  the  trial  the  plaintiff,  (now  defendant  in   error,)   offered 
evidence,  that  Richard  Owings,  the  testator  of  the  defendants, 
(now  plaintiffs  in  error,)  in  his  lifetime,  proposed  to  the  widow 
of  Beetle  Owings,  of  Baltimore  county,  the  mother  of  the 
plaintiff,  that  if  she  would  decline  taking  out  letters  of  admini- 
stration on  her  deceased  husband's  estate,  and  permit  him  to 
obtain  such  letters,  that  upon  the  settlement  of  the  estate  he 
would  pay  to  her  all  the  commissions  which  should  be  allowed 
him  by  the  orphans  court  for  the  settlement  of  said  estate;  that 
after  the  settlement  of  the  said  estate,  and  after  the  said  Richard 
Owings  had  received  and  been  allowed  as  aforesaid  the  sum  of 
$1,069  63,   as  his  said  commission,  it  was  agreed  by  and  be-, 
tween  the  said  Richard  and  the  said  mother  of  the  plaintiff, 
that  the  said  commission  should  not  be  paid  to  the  said  widow, 
but  should  be  paid,  with  interest  thereon,   to  the  children  of 
the  said  widow,  viz.  Harriet  Owings,  Mary  Owings,  and  Na- 
than Owings,  in  equal  portions;  and  the  said  Richard  Owings 
promised  and  agreed  with  said  widow  to  pay  the  same  accord- 
ingly.     That  afterwards,  upon  the  marriage  of  said  Harriet, 
€he  said  Richard  paid  to  her  the  sum  of  $500,  which  he  told 
her  was  the  portion  to  which  she  was  entitled.     The  defendants 
then  offered  in  evidence  the  will  of  Richard  Owings,  dated  the 
17th  of  October  1818,  containing,  among  others,  the  following 
devises,  viz.   "7/ewz.   I  give  and  bequeath  unto  my  two  grand- 
children, Nathan  H.  Oivings  and  Mary  Owings,  children  of 
my  son  Beale,  all  my  tract  of  land  lying  in  Baltim ore  county, 
on  Morgan's  Run,  called  Point  Espright,  and  known  by  the 
name  of  Lindsey's  Meadows,  in  equal  portions  to  each  of  them, 
their  heirs  and  assigns,  forever,  as  tenants  in  common;  also  one 
hundred  dollars  to  each  of  them,  to  be  paid  out  of  my  personal 
estate."     The  defendants  further  proved   by  the  person   who 
•wrote  the  will,  that  the  devises  and  bequests  made  b}*  the  tes- 
tator to  Nathanan<\  Mary  Owings,  were  declared  by  him,  at 
the  time  of  making  his  will,  to  be  made  for  the  purpose  of 
placing  said  Mary  and  Nathan  on  the  same  footing  with  liar* 


CASES  1$  THE  COURT  OF  APPEALS 


OWINGS  v.  OWIITGS,  —  1827. 


riet  Hams,  to  whom  he  had  already  paid  the  sum  of  money 
proved  as  above  mentioned  to  have  been  paid.  The  defendants 
then  prayed  the  court  to  instruct  the  jury,  that  the  plaintiff  was 
not  entitled  to  recover.  And  the  Court,  \JDorsey  r,  Ch.  J.  and 
Kilgour,  A.  J.]  instructed  the  jury,  that  if  they  believe  the 
testimony  offered  on  the  part  of  the  plaintiff,  that  the  agreement 
on  the  part  of  the  widow  to  relinquish  her  right  to  the  admini- 
stration on  her  deceased  husband's  estate,  and  the  promise  of 
Richard  Owings,  in  consideration  thereof,  to  pay  the  commis- 
sions to  her,  with  his  allowance  and  receipt  of  the  sum  of 
money,  is  a  sufficient  consideration  to  support  an  action  of  as- 
sumpsit  therefor  against  the  said  Richard  Owings  by  the  said 
widow.  That  the  subsequent  agreement  between  the  said 
Richard  Owhigs,  and  the  said  widow,  transferred  to  the  said 
children  such  an  interest  in  the  money  received  as  such  com- 
missions by  Richard  Owings,  as  to  enable  them  to  recover  the 
amount  thereof  in  an  action  of  general  indebitatus  assumpsit. 
Thai  the  devise  and  bequest  made  by  Richard  Owings  to  the 
plaintiff,  is  not  in  contemplation  of  law  a  satisfaction  of  the 
plaintiff's  claim,  or  any  part  thereof.  The  defendants  exceptcd. 
Verdict  and  judgment  for  the  plaintiff,  and  the  defendants 
brought  the  present  writ  of  error. 

The  cause  was  argued  at  the  last  June  term,  before  BUCHANAN, 
Ch.  J.  and  EARLE,  STEPHEN,  and  ARCHER,  J. 

Magruder,  for  the  plaintiffs  in  error,  contended,  1.  That 
the  promise  by  their  testator,  stated  in  the  bill  of  exceptions, 
was  nudum  pactiim. 

2.  If  for  the  promise  there  was  such  a  consideration  as  would 
support  an  action  at  law,  the  action  ought  to  have  been  brought 
in  the  name  of  the  mother  of  the  defendant  in  error,  to  whom  the 
promise  was  made,  and  from  whom  the  consideration  moved. 

3.  If  the  suit  could  be  brought  by  the  children,  they  ought 
to  have  united  in  one  suit,  instead  of  bringing  separate  suits  on 
one  promise. 

4.  The  devise  to  the  plaintiff  below,  in  the  will  of  the  tes- 
tator, of  the  defendants,  is  a  satisfaction  of  the  claim  set  up  in 
this  action. 

He  cited,  in  his  argument  upon  the  above  points,  Sdw.  N. 


OF  MARYLAND. 


487 


OWI.NGS  v.  OWISGS. — 1827. 


P.  39,  40,  41,  45.  Crow  vs  Rogers,  1  Stra.  592.  1  Com.  on 
Cont.  26.  Toller,  337.  Chaplin  vs  Chaplin,  3  P.  Wms.  247. 
1  Com.  Dig.  309,  (note.) 

Shaw,  for  the  defendant  in  error,  cited  Pow.  on  Cont.  211, 
206,  207.  .ForM  «w  Sianton,  1  Sannd.  211,  b.  Pillansvs 
Mierop,  3  j^wrr,  1673.  1  Com.  J9fg-.  310.  Partridge  vs 
Partridge,  2  Hart:  $  Johns.  63. 

Curia  adv.  vult. 

STEPHEN,  J.  at  the  present  term,  delivered  the  opinion  of  the 
Court.  [After  stating  the  case  he  proceeded  as  follows:]  The 
question  for  this  court  to  determine,  is  whether  the  court  below 
gave  a  correct  exposition  of  the  law  to  the  jury  upon  the  prayer 
made  to  them?  In  deciding  upon  this  ease  several  questions 
present  themselves  for  the  consideration  and  adjudication  of 
this  court.  First.  Was  there  a  sufficient  consideration  to  sus- 
tain the  promise  made  by  Richard  O wings  to  the  mother  of 
the  plaintiff?  Secondly.  If  there  was,  ought  the  suit  to  have 
been  brought  by  the  mother  of  the  plaintiff,  the  promisee;  or 
was  the  plaintiff,  the  person  beneficially  interested  in  that  pro- 
mise, competent  to  maintain  the  action  in  her  own  name? 
Thirdly.  If  she  was  competent  to  support  the  action  in  her 
own  name,  ought  she  not  to  have  joined  with  her  in  the  action 
her  co-beneficiaries  under  said  conlract;  or,  in  other  words,  was 
each  of  the  children,  who  were  intended  to  be  benefited  by 
said  agreement,  competent  to  support  an  action  for  their  pro- 
portional interest?  And  lastly.  Whether  there  is  any  thing  in, 
the  said  agreement  between  the  mother  and  the  grandfather, 
which  it  is  contrary  to  the  policy  of  the  law  to  sanction  or  al- 
low? As  to  the  sufficiency  of  the  consideration  to  support  the 
promise,  in  1  Powell  on  Contracts,  344,  the  law  is  laid  down, 
to  be,  in  reference  to  this  subject,  that  "a  consideration  may 
arise  or  be  created  by  doing  or  permitting  somewhat  to  be  done 
to  the  prejudice  or  loss  of  one  of  the  parties.  So  that  it  is  not 
absolutely  necessary  that  the  consideration  for  a  contract  im- 
ports some  gain  to  him  that  makes  the  contract;  but  it  is  suf- 
ficient that  the  party,  in  whose  favour  the  contract  is  made, 
foregoes  some  advantage  or  benefit  which  otherwise  he  might 
have  taken  or  had,  or  suffers  some  loss  in  consequence  of  placing 


488  CASES  IN  THE  COURT  OF  APPEALS 

OwiTfos  v.  OWIHGS — 1827. 

his  confidence  in  another's  undertaking."  In  illustration  of 
this  principle,  in  page  347,  he  refers  to  Webb's  case,  4  Leon. 
110,  "where  in  an  action  upon  the  case  the  plaintiff  declared, 
that  whereas  C.  was  indebted  to  JS,  and  J  S  to  the  defendant; 
the  defendant,  in  consideration  that  the  plaintiff  would  pro- 
cure J  S  to  make  a  letter  of  attorney  to  the  defendant  to  sue 
C,  promised  to  pay  and  give  to  the  plaintiff  ,£10.  It  was  object- 
ed that  here  was  not  any  consideration  to  induce  the  assump- 
sit;  for  that  the  defendant,  by  this  letter  of  attorney,  got  nothing 
but  his  labour  and  travel;  but  the  exception  was  not  allowed  of; 
because  in  this  case,  not  so  much  the  profit  which  redounded  to 
the  defendant,  as  the  labour  of  the  plaintiff  in  procuring  of 
the  letter f5f  attorney,  was  to  be  respected."  So  in  the  case 
now  before  this  court,  it  is  not  so  much  the  emolument  which 
the  defendants'  testator  derived  from  his  undertaking  or  agree- 
ment with  the  mother  of  the  plaintiff,  that  is  to  be  regarded  as 
the  valuable  and  beneficial  privilege  which  the  promisee  parted 
with  in  transferring  to  the  defendants'  testator  her  right  of  ad- 
jnir, i*( ration.  In  Pillans  vs  Mierop,  3  Bur-r.  1673,  Mr.  Jus- 
tice Yates  says,  "anv  damage  to  another,  or  suspension  or  for- 
bearance of  his  right,  is  a  foundation  for  an  undertaking,  and 
will  n.ake  it  binding,  though  no  actual  benefit  accrues  to  the 
party  undertaking." 

As  to  the  right  of  the  plaintiff  to  maintain  the  action  in  her 
own  name,  in  the  case  of  Schemerhorn  vs  Vanderheyden, 
1  Johns.  Rep.  139,  the  court  say,  "we  are  of  opinion  that 
where  one  person  makes  a  promise  to  another  for  the  benefit  of 
a  third  person,  that  third  person  may  maintain  an  action  on 
such  promise.  This  was  the  doctrine  of  the  King's  Bench  in 
the  case  of  Dutton  vs  Pool*  affirmed  in  error.  The  same  prin- 
ciple has  since  that  time  been  repeatedly  sanctioned  by  the  de- 
cisions of  the  English  courts" — Vide  3  Boss,  fy  Pull.  149,  ia 
the  notes  to  Pigot  vs  Thompson.  In  that  case  Buller,  Jus- 
tice, is  stated  to  have  said,  "if  one  person  makes  a  promise  to 
another  for  the  benefit  of  a  third,  that  third  may  maintain  au 
action  upon  it."  In  the  case  of  Martyn  vs  Hind,  2  Cowper's 
Rep.  443,  Lord  Mansfield,  in  speaking  of  the  case  Duttonvs 
Pool,  reported  1  Vent.  318,  and  in  2  Lev  210,  is  reported  to 
have  said,  "h  is  matter  of  surprise,  how  a  doubt  could  havs 


OF  MARYLAND.  489 


OWINGS  t'.  OWISGS  — 1827. 


arisen  in  that  case.  It  was  a  promise  to  the  father  by  a  person 
in  remainder,  that  if  he  would  leave  so  much  wood  standing, 
he  would  pay  his  daughter  £1000,  the  value  of  the  wood,  which 
the  father  had  intended  to  cut  down.  The  daughter,  upon  the 
father's  death,  brought  an  action  for  the  £1000,  and  the  court 
held  she  was  entitled  to  bring  the  action.  And  upon  error  the 
judgment  was  affirmed."  In  the  note  to  Pigot  vs  Thompson, 
3  Bos.  fy  Puller,  149,  it  is  said,  "with  respect  to  the  right  of 
a  third  person  to  sue  upon  a  parol  promise  made  to  another  for 
his  benefit,  there  is  great  contradiction  among  the  older  cases. 
But  in  Dutton  vsPool,  the  point  seems  to  have  been  very  fully 
considered,  and  very  solemnly  decided.  There  the  father  of 
the  plaintiff's  wife  being  seized  of  a  wood,  which  he  intended 
to  sell  to  raise  fortunes  for  his  younger  children,  the  defendant 
being  his  heir,  in  consideration  that  he  would  forbear  to  sell  it, 
promised  to  pay  his  daughter,  the  plaintiff's  wife,  £1000,  for 
which  the  action  was  brought;  -and  it  was  held,  that  the  plaintiff 
might  well  maintain  the  action.  Which  decision  was  affirmed 
in  the  Exchequer  Chamber.  In  that  case,  indeed,  some  stress 
was  laid  upon  the  nearness  of  relationship  between  the  plain- 
tiff's wife  and  her  father,  to  whom  the  promise  was  made;  but 
another  case  has  since  occurred  to  which  that  Teason  does  not 
apply;"  and  the  case  of  Martyn  vs  Hind,  above  mentioned,  is 
referred  to. 

But  in  this  case  the  promise  was  made  to  the  mother  for  the 
benefit  of  her  children,  and  therefore  the  decision  of  the  court 
in  Dutton  vs  Poole  is  in  perfect-accordance  with  the  judgment 
of  the  court  below  rendered  in  this  case,  as  to  the  capacity  of 
the  plaintiff  to  sue  in  her  own  name,  if  the  cases  are  analogous 
or  can  be  assimilated  in  point  of  principle.  In  the  case  of  Dut- 
ton vs  Poole,  there  was  nothing  due  from  the  son  to  the  father, 
which  the  son  promised  the  father  he  would  pay  to  the  daugh- 
ter; in  that  case,  as  in  this,  there  was  no  pre-existing  debt  due 
to  the  father  from  the  son,  upon  which  the  promise  could  ope- 
rate by  way  of  transferring  it  as  a  chose  in  action;  but  it  was 
simply  an  engagement,  that  if  the  father  would  forbear  selling 
the  wood  in  which  the  son  had  an  interest  as  heir  at  law,  he 
would  pay  the  daughter  the  J61000,  which  it  was  the  intention 
af  the  father  to  raise  by  selling  the  wood.  la  th»t  case,  then, 
i.  6» 


490  CASES  IN  THE  g»URT  OF  APPEALS 

OWINBS  v.  OWINGS. — 1827. 

the  original  promise  or  undertaking  was  for  the  benefit  of  the 
daughter;  the  father  at  the  time  the  promise  was  made  had  no 
claim  whatever  against  the  son  upon  which  the  promise  for  the 
benefit  of  the  daughter  was  intended  to  operate,  and  consequent- 
ly it  could  not  be  viewed  in  the  light  of  an  assignment  of  a 
chose  in  action.  But  in  the  case  now  under  adjudication,  the 
money  had  actually  been  received  by  the  grandfather  at  the 
time  the  promise  was  made  by  him  to  the  mother  of  the  plain- 
tiff; she  had  nothing  more  than  a  chose  in  act  ion,  which  could 
only  be  reduced  into  possession  by  a  suit  at  law.  In  the  late 
edition  of  Com.  Digest)  309,  (note  P,)  will  be  found  a  most 
elaborate  examination  of  most,  if  not  all  the  authorities  which 
have  a  bearing  upon  this  subject.  In  that  note,  the  author  says, 
"There  is  nothing,  however,  illegal  in  transferring  a  contract 
unbroken,  or  even  a  debt  due,  the  transfer  is  available  in  equity, 
and  the  assignor  cannot  afterwards  sue  upon  the  contract  for 
money  had  and  received,  that  being  an  equitable  action,  and  he 
having  no  equity;  nor  can  he  afterwards  release  it,  if  the  debt- 
or knows  of  the  assignment.  If,  too,  where  the  assignee  is 
about  to  sue  upon  it  in  his  own  name  in  equity,  or  in  name  of 
the  assignor  at  law,  the  debtor  promises  to  pay  him  if  he  will 
forbear;  (e.  g. )  on  the  time  of  forbearance  elapsing  he  may 
sue  him  in  his  own  name.  Here  the  suit,  though  in  form  on  a 
new  contract,  is  in  effect  founded  on  the  old  one  as  well,  for 
the  assignee  thereby  recovers  what  is  due  for  the  breach  of  it, 
which  recovery  bars  the  assignor's  action;  and  in  this  indirect 
manner  may  a  stranger  to  a  contract  sue  thereon.  A  contract 
may  be  assigned  by  word  of  mouth,  for  this  reason,  if  no  other, 
that  the  transfer  passes  but  an  equity.  It  forms  no  exception 
to  the  rule,  (that  at  common  law  simple  contracts  cannot  be 
transferred  by  the  owner,)  that  if  A,  having  ready  money  be- 
longing to  B,  agrees  with  B  to  pay  it  over  to  C,  C  may  sue  A 
for  it  in  his  own  name,  since  the  reason  is,  that  by  the  agree- 
ment the  money  has  changed  owners,  and  A  has  become  C's 
agent,  as  he  was  B's  before.  This  case,  and  that  where  B  pays 
money  to  A  tor  the  use  of  C,  when  C  may  sue  for  it,  are  in 
principle  the  same.  However,  to  enable  C  to  sue  as  above,  it 
seems  requisite  that  a  specific  sum  of  money,  or  what  is  equi- 
valent thereto,  hag  been  deposited  with  A,  upon  which  the  as-. 


OF  MARYLAND.  491 


OWINGS  v.  OWINCS. — 1827. 


signment  may  operate;  and  that  A's  assent  to  pay  C  a  debt  due 
from  himself  to  B,  would  be  unavailing."  This  valuable  note 
in  Comyn  has  been  more  copiously  extracted  from  on  account 
of  the  clearness  and  perspicuity,  with  which  the  law  upon  this 
subject  is  therein  laid  down  and  explained.  If  in  the  case  now 
before  this  court,  the  promise  by  Richard  Owings,  the  grand- 
father, had  been  in  the  first  instance  to  the  mother,  for  the  be- 
nefit of  the  children;  or  in  other  words,  if  he  had  promised  the 
mother  to  pay  the  commissions  to  the  children,  in  that  case  the 
promise  would  have  enured  for  the  benefit  of  the  children,  and 
upon  the  authority  of  Dutton  vs  Poole,  the  children  might 
have  supported  an  action  in  their  own  names;  but  it  was  not 
until  after  the  money  was  received  by  him,  and  had  become  a 
debt  due  to  the  mother,  that  it  was  agreed  between  him  and 
the  mother,  that  it  should  be  paid  over  to  the  children;  and 
was  consequently  nothing  more  than  a  promise  made  by  A, in- 
debted to  B,  to  pay  C  that  debt;  and  no  case  has  been  found 
where  it  has  been  decided,  that  under  such  circumstances  C 
could  maintain  the  action  in  his  own  name;  such  a  case  being 
essentially  different  from  the  one  where  one  person  pays  mo- 
ney to  another,  for  the  use  of  a  third,  or  where  a  person,  having 
ready  money  belonging  to  another,  agrees  with  that  other  to 
pay  it  over  to  a  third;  in  both  which  cases  it  is  admitted  the  ac- 
tion might  be  brought  in  the  names  of  the  persons  beneficially 
interested.  As  to  the  position  that  the  devise  and  bequest  ope- 
rated as  a  satisfaction  of  the  debt,  it  is  considered  not  to  be  sus- 
tainable, because  it  is  well  settled,  that  a  devise  of  land  is  not 
considered  in  law  a  satisfaction  of  a  pecuniary  debt,  nor  can 
the  legacy  in  this  case  operate  that  effect,  because  it  is  of  a  less 
amount  than  the  sum  due;  and  even  if  the  parol  declarations 
of  the  testator,  made  cotemporaneously  with  the  will,  were  ad- 
missible, which  it  is  unnecessary  to  decide,  there  is  no  proof 
that  possession  had  ever  been  taken  of  the  land,  or  that  the  le- 
gacy had  ever  been  paid.  This  court  is  further  of  opinion,  that 
upon  the  evidence  in  this  cause  separate  suits  would  have  been 
sustainable  by  each  of  the  children  for  their  respective  propor- 
tions, if  the  actions  could  have  been  brought  in  their  names;  it 
is  not  the  case  of  a  pron.ise  made  to  them  jointly,  but  a  promise 
made  to  their  mother  for  their  benefit  by  the  defendant's  testa- 


492  CASES  IN  THE  COURT  OF  APPEALS 

TAYLOR  &  M'NEAL  v.  PHM.PS. — 1827. 

tor,  whereby  he  engaged  to  pay  the  money  due  to  the  mother, 
to  her  three  children,  Harriet,  Mary,  and  Nathan  Owings, 
itt  equal  portions,  so  that  it  was  not  the  intention  of  the  con- 
tracting parties,  that  the  children  should  receive  or  recover  by- 
law the  entire  sum,  and  then  divide  it  among  themselves,  but 
that  each  should  be  paid  his  or  her  separate  part  by  the  grand- 
father; from  whence  it  follows,  that  if  a  resort  to  legal  process 
become  necessary  to  enforce  payment,  each  would  have  had  a 
right  to  maintain  a  separate  action  for  his  or  her  part;  provided 
the  case  had  been  such  that  suits  could  have  been  brought  in 
their  own  names.  It  is  not  deemed  necessary  to  go  into  an  in- 
quiry how  far  such  agreements  as  the  present  ought  to  receive 
the  countenance  or  sanction  of  the  la*v,  as  the  court  do  not  dis- 
cover in  this  case  that  the  rights  of  any  of  the  parties  interest- 
ed have  been  injuriously  affected  by  the  transfer  of  the  right  of 
administration;  but  it  is  certainly  not  consistent  with  the  policy 
of  the  law  to  encourage  such  transfers  as  in  bad  hands,  the  prac- 
tice might  lead  to  gross  violations  of  trusts,  and  the  most  per- 
nicious consequences.  From  this  view  of  the  law  governing 
this  case,  the  court  are  of  opinion  that  the  judgment  below 
eught  to  be  reversed. 

ARCHER,  J.  dissented. 

JUDGMENT  REVERSED. 


TAtLOB  &  M'NEAL  VS  PHELPS. — June,  1827. 

Where  a  debt  has  been  recovered  by  attachment  in  a  foreign  court,  the  re- 
covery is  a  protection  to  the  debtor,  as  garnishee,  against  his  original 
creditor. 

In  the  absence  of  any  proof  of  fraud  or  collusion,  the  presumption  is,  that 
what  is  done  under  a  foreign  attachment,  is  rightly  done,  and  that  the 
claim  of  the  attaching  creditor  is  established  to  the  satisfaction,  at  least 
of  the  court,  in  which  the  judgment  of  condemnation  is  obtained. 

Foreign  judgments  are  not  conclusive  when  sought  to  be  enforced  by  suits 
being  brought  upon  them,  they  are  then  but  prima  facie  evidence— may 
be  impeached  for  irregularity,  and  rebutted  by  evidence. 

The  judgments  of  foreign  courts  of  competent  jurisdiction,  when  they  come 
incidentally  in  question,  as  where  they  are  relied  upon  by  garnishees 
as  a  protection  against  the  claims  of  their  former  creditors,  have  the 
force  and  effect  of  domestic  judgments,  and  are  conclusive 

APPEAL  from  Baltimore  County  Court.     This  was  an  action 
otassumpsit,  brought  by  the  appellants  against  James  Montan- 


OP  MARYLAND.  493 


TAYLOR  &  M'NjuL  v.  PHELPS. — 1827. 


devert,  and  Henry  P he /ps,  surviving  partners  of  Jonathan  O. 
Walker,  deceased.  Upon  the  writ  which  issued,  Montande- 
vert  was  not  arrested.  The  declaration  contained  two  counts — 
»ne  for  money  had  and  received,  and  the  other  on  an  insimul 
tomput assent.  The  defendant,  (now  appellee,)  pleaded  non 
mssumpsit,  and  issue  was  joined. 

At  the  trial  the  plaintiffs  offered  in  evidence  an  account  ren- 
dered to  them  by  the  defendant,  and  his  said  partners,  ( Mon- 
tandeiert,  Walker,  S?  Co.}  of  sales  of  herrings,  received  at 
Port-au-Prince,  by  the  latter  from  the  former,  made  in  Janua- 
ry and  February  1820,  amounting  to  $933  67;  and  theamornt 
of  charges  $473  96,  being  deducted,  left  due  to  the  plaintiffs* 
the  sum  of  $459  71;  which  account  was  admitted  to  be  in  the 
handwriting  of  the  defendant,  and  by  him  delivered  to  the  plain- 
tiffs. The  defendant  then  offered  in  evidence  the  commission 
which  issued  in  this  cause  to  Port-au-Prince,  on  the  10th  of 
April  1823,  for  the  purpose  of  taking  testimony,  and  docu- 
ments and  translations.  The  commissioners,  by  their  return 
to  the  commission,  stated  that  they  had  taken  the  deposition  of 
J.  Mulhry,  who,  to  the  defendant's  second  interrogatory — 
"Are  you,  or  are  you  not,  acquainted  with  the  laws  of  that  part 
of  Sain  f- Domingo  in  which  Port-au-Prince  is  situate?  If 
yp.a,  stare  what  is  the  law  relative  to  attachments.  And  can  or 
cannot  the  creditor* of  one  man  attach  the  funds  of  his  creditor 
in  the  hands  of  a  third  person;  and  can  he  or  can  he  not  com- 
pel such  third  person  to  pay  him  the  amount  in  such  third  per- 
son's hands  belonging  to  such  debtor?"  Answered  in  the  af- 
firmative. To  the  defendant's  third  interrogatory — "If 'there 
be  such  a  law,  as  before  referred  to,  is  it  written  low,  or  the 
common  law  of  the  country?  If  it  be  written  law,  annex  a 
copy  of  the  same,  examined  and  compared  by  you  with  the 
ori^<nal,  to  your  answer  hereto."  He  answered  "it  is  a  writ- 
ten law  of  which  the  annexed  is  a  true  copy.  <-To  the  defen* 
clant's  fourth  interrogatory — "Did  or  did  not  a  certain  Frede- 
rick Kramer*  or  some  other  person,  lay  an  attachment  on  tho 
funds  of  TV/?/ lor  and  M'Neal,  ii  the  hands  of  Montandevert, 
Walker,  $  Co.  of  Port-au-Prince?  If  yea,  when  was  it  done; 
and  did  the  said  Kramer  get  a  judgment  against  said  Montana 


494       CASES  IN  THE  COURT  OF  APPEALS 

jt— — • • —— — - — • 

TAYLOR  &  M'NKAL  v.  PHELPS.— 1827. 

devert,  Walker,  $'  Co.  and  for  what  amount;  and  was  the  same 
paid  by  them  to  him?  He  answered  in  the  affirmative;  and 
Says,  "the  attachment  was  laid  in  January  or  February  1820,  and 
judgment  wjfs  obtained  against  whatever  funds  there  might  be 
in  the  hands  of  Montandevert,  Walker,  &c  Co.  belonging  to- 
Taylor  and  M'Neat,  not  exceeding  $797  50."  To  the  defen- 
dant's fifth  interrogatory — "Annex  a  copy  of  the  proceedings 
compared  by  yourself  with  the  original  record  in  the  attachment 
so  laid  in  the  hands  of  said  Montandevert,  Walker,  <§•  Co." 
He  answered  "the  annexed  is  a  just  and  true  copy  of  the  ori- 
ginal proceedings  in  this  case,  copied  and  compared  by  himself, 
from  the  original  records."  The  deponent  further  stated  "that 
attachments  are  served  by  the  sheriff  who  keeps  no  copy  of  themr 
nor  are  they  registered  in  any  other  office.  That  in  this  case  he- 
knows  of  the  attachment  being  duly  and  legally  laid  by  the 
said  F.  Ji.  Kramer,  on  the  property  of  Taylor  and  M'Neaf, 
in  the  hand  of  the  said  Montandevert,  Walker,  8f  Co.  and  that 
in  consequence  thereof,  and  of  the  judgment  subsequently  ob- 
tained against  the  said  Taylor  and  M'Neal,  the  amount  of  funds 
belonging  to  them  in  the  hands  of  Montandevert,  Walker,  <§• 
Co.  was  paid  over,  or  placed  to  the  credit  of  the  said  Kramer, 
by  Montandevert,  Walker,  8r  Co."  Then  follows— [Seal.] 
"Extract  from  the  records  deposited  at  the  office  of  the  Civil 
Court,  sitting  at  Port-au-Prince.  We  the  subscribers,  ap- 
pointed arbitrators  by  Messrs.  Montandevert,  Walker,  fy  Co. 
on  one  part,  and  Mr.  F.  J2.  Kramer  on  the  other,  in  order  to 
decide  upon  the  differences  existing  between  the  said  Messrs. 
Montandevert,  Walker,  fy  Co.  and  F.  «#.  Kramer,  concern- 
ing various  debts  due  by  Messrs.  Dennis  and  Brown,  of  Mira- 
goane,  after  having  heard  the  two  parties,  and  after  having  at- 
tentively examined  the  several  documents  relating  to  the  busi- 
ness in  contestation,  are  of  opinion  that  the  advance  of  the  sum 
of  seven  hundred  and  ninety-seven  dollars  and  fifty  cents,  made 
in  the  month  of  February  last,  to  said  Mr.  F.  •/!.  Kramer,  by 
Messrs.  Montandevert,  Walker,  &f  Co.  was  not  made  to  him 
but  under  his  personal  responsibility;  and  that  the  papers,  es- 
tablishing the  debts  of  said  Messrs.  Dennis  and  Brown,  were 
not  deposited  in  the  hands  of  Messrs.  Montandevert,  Walker, 
tf  Co.  but  to  be  used  as  collateral  security;  or  further,  that  the 


OF  MARYLAND.  495 


TATLOK  &  M«NEAL  v.  FUELPS.— 1827. 


payment  of  the  sums  due  by  Messrs.  Dennis  and  Brown,  has 
not  yet  been  made.  We  have  adjudged,  and  do  adjudge  Mr. 
F.  +%.  Kramer,  to  repay  Messrs.  Montandevert,  Walker,  4* 
Co.  in  the  space  of  four  months  from  this  date,  the  said  sum  of 
seven  hundred  and  ninety-seven  dollars  and  fifty  cents.  And 
in  case  it  should  be  his  intention  to  leave  this  Island  before  the 
expiration  of.  the  said  term,  he  shall  be  held  to  furnish  a  giiod 
and  solvent  security  that  the  present  award  shall  be  executed  in 
all  its  force;  on  the  other  hand,  Messrs.  Montandevert,  Walker, 
$?  Co.  are  held,  on  their  part,  to  render  every  assistance  in  their 
•quality  of  merchants,  consignees,  and  patented,  to  facilitate  the 
recovery  of  the  debts  due  by  Dennis  and  Brown.  Port-au- 
Prince,  Haiti,  7th  September  1819.  (Signed,)  Robert  Golder, 

James  Booth. 

Examined. — True  copy. — Deire  Leon,  clerk. 

"Code  of  civil  proceedings.  Title  VII,  of  attachments  or 
oppositions,  article  557.  Every  creditor  can,  in  virtue  of  titles 
which  are  of  public  authenticity  or  private,  attach  in  the  hands 
of  a  third  person  the  sums  or  effects  belonging  to  his  debtor,  or 
make  opposition  to  their  delivery.  55S.  If  there  are  no  titles, 
the  judge  of  the  debtor's  residence,  and  even  the  judge  of  the 
place  of  residence  of  the  third  person,  can,  upon  petition,  per- 
mit the  attachment  or  opposition. 

"Extract  from  the  minutes  deposited  at  the  registry  of  the 
civil  tribunal  sitting  at  Port-au-Prince.  To  the  Dean  and 
Judges  of  the  Civil  Tribunal  sitting  in  this  city,  begs  humbly 
Messrs.  Montandevert,  Walker,  foreign  merchants,  establish- 
ed in  this  city,  patented  under  No.  39,  whose  domicil  is  chosen 
in  the  study  of  the  undersign'ed  defender.  See  annexed  an  un- 
der date  the  7th  of  the  present  month,  by  Messrs.  Robert  Gold- 
er  and  James  Booth,  merchants,  residing  in  this  city,  requires 
that  it  please  you  to  be  willing  to  order  by  an  ordinance  put  at 
the  end  of  the  present,  that  it  will  be  authorised,  and  that  it 
will  issue  in  its  full  and  entire  effect — You  will  do  well.  Port- 
au-Prince,  the  24th  September,  1819. 

Signed,  blalle.ry,  Def. 

"Seeing  the  above  demand  in  the  name  of  Mr.  Montande- 
vert Walker,  a  foreign  merchant,  established  in  this  city,  pa- 
tented under  No.  39,  asking  the  execution  or  confirmation  of  a 


CASKS  IN  THE  COURT  OP  APPEALS 


TAYLOR  &.  M'NEAI.  v.  PHELPS  — 1827. 


sentence  awarded,  which  has  been  presented  to  us  this  day — 
We,  Henry  Jlmedee  Gfiyot,  Dean  of  the  Civil  Tribunal  sitting 
in  this  city,  order  that  the  judgment  awarded,  made  by  the  con- 
eent  of  the  parties,  between  Mr.  Montandevert  Walker  and 
Mr.  F.  Jl.  Kramer,  by  the  arbitrators,  Robert  Golder  and 
James  BooM,  shall  be  deposited  at  the  registry  of  the  court, 
and  purely  and  simply  shall  issue  to  have  its  full  and  entire  ef- 
fect, in  virtue  of  article  one  thousand  and  twenty  of  the  code 
of  civil  proceedings.  Given  by  us,  Dean  of  the  Civil  Tribu- 
nal, Port-au-Prince,  the  25th  September  1S19,  the  16th  year 
«f  Independence. 

(Signed)  Gayot. 

"Extract  from  the  registers  of  the  registry  of  the  civil  tri- 
bunal sitting  at  Port-au-Prince.  In  the  name  of  the  Repub- 
lic. The  civil  tribunal  sitting  at  Port-au-Prince,  competent- 
ly united  at  the  palace  of  justice,  have  rendered  ihe  following 
judgment:  The  tribunal,  on  the  petition  of  Mr.  Walker,  pre- 
sent, assisted  by  Mr.  Mallery,  public  defender,  granted  the  act 
to  the  said  Walker,  a  foreign  merchant,  patented  in  this  city, 
by  the  consent  of  Mr.  F.  Jl.  Kramer,  a  foreigner,  also  present 
by  summons,  at  the  request  of  Messrs.  Mantandevert,  Walk- 
er Sf  Co.  asking  the  execution  of  the  awarded  judgment  of  the 
7th  of  September  last,  with  the  constraint  of  the  body,  which 
the  said  Kramer  has  reo"i  •  d  of  the  judges — as  far  as  Messrs. 
^•lontandevert,  Walker  4'  Co.  foreign  merchants,  patented  in 
this  city,  were  authorised  to  pay  themselves  the  amount  of  the 
condemnation  pronounced  by  the  awarded  judgment  of  the  7th 
September  of  the  last  year,  duly  confirmed  the  25th  of  the  same 
month,  out  of  the  funds  which  they  have  in  their  hands  belong- 
ing to  Messrs.  Taylor  fy  M'Neal,  for  which  the  sum  carried 
to  the  awarded  judgment  aforesaid  has  been  borrowed.  Given 
by  us,  F.  JLbeille,  Judge,  discharging  the  duties  of  Dean,  Nep- 
tune and  Perpignand,  Judges  at  the  Hall  of  Justice  in  ordi- 
nary audiance,  on  the  29th  February  1820,  the  17th  year  of 
Independence — We  command,  &c.  In  faith  of  which  the  pre- 

has  been  signed  by  the  Judge  tftbeille,  and  the  register. 
(Signed)    "  F's.  rfbeille. 

Jlrmand,  Register. 

Compared — for  copy  examined. 

Dctre  Leon,  Register;0 


MARYLAND.  497 


TAYLOR  &.  M'NKAL  v.  PHELPS — 1827. 


Sworn  to  be  true  and  correct  translations  by  Thomas  W. 
Griffith.  The  execution  of  the  commission  was  admitted,  and 
all  errors  in  the  pleadings  were  waived  by  consent  of  the  par- 
ties. The  defendant  then  prayed  the  court  to  instruct  the  jury, 
that  the  plaintiffs  were  not  entitled  to  recover.  Which  instruc- 
tion the  Court,  [.Qrcher,  Ch.  J.  and  Hanson,  A.  J.]  gave  to  the 
jury.  The  plaintiffs  excepted;  and  the  verdict  and  judgment 
being  against  them,  they  appealed  to  this  court. 

The  cause  was  argiied  before  BUCHANAN,  Ch.  J.  and  EJARLE^ 
MARTIN,  STEPHEN,  and  DORSET,  J. 

Gill,  for  the  Appellants,  contended,  1.  That  the  instruction 
of  the  court  below  was  wrong,  because  the  proceedings  of  the 
court  at  Port-au- Prince,  set  forth  in  the  commission,  establish- 
ed that  no  final  judgment  had  been  there  rendered;  that  judg- 
ment was  manifestly  unfit  to  be  adopted  as  final  and  conclusive. 
It  did  not  contain  a  condemnation  of  Taylor  aiid  M'Neal's 
funds.  It  was  a  mere  authority  to  J\I,  IValker,  &*  Co.  to 
pav  themselves  a  debt  due  from  Kramer,  out  of  Taylor  and 
M'Neal's  funds  in  their  hands,  as  far  as  they  (M.  W.  8? 
Co.)  were  authorised;  and  how  far  they  were  authorised  does 
not  appear.  The  proceedings  leaving  the  question  of  autho- 
rity open,  finally  settled  nothing;  short  of  a  final  sentence  of 
condemnation  the  proceedings  on  attachment  were  no  bar. 

2.  The  defence  relied  on  arose  from  testimony  offered  by  the 
defendant,  he  had  therefore  no  right  to  assume  its  truth,  and 
require  of  the  court  below,  an  absolute  instruction  to  the  jury, 
that  the  plaintiffs  were  not  entitled  to  recover.  Where  the 
plaintiff  or  defendant  requires  an  instruction  from  the  court,  on 
the  testimony  of  the  opposite  party,  it  is  like  a  demurrer  to 
evidence,  and  admits  the  truth  of  the  facts  offered  in  proof,  and 
reasonable  inferences  from  them;  in  such  case  the  instruction 
may  be  positive  and  conclusive,  because,  as  the  court  have  the 
facts  admitted,  the  intervention  of  a  jury  is  unnecessary;  but 
where  either  prays  an  instruction  on  his  own  proof,  the  instruc- 
tion, if  granted,  should  be  hypothetical,  as  if  the  jury  believe 
th<:  testimony;  otherwise  either  party  may  at  pleasure  take  the 
queslio-)  o':"  how  far  the  testimony  is  true  or  false,  from  the 
ju;y.  Th  y  are  the  exclusive  judges  of  the  credibility  of  the 
VOL.  i.  6.3 


498       CASES  IN  THE  COURT  t)F  APPEALS 

___ — — -•    - — ; 

TAYLOR  S;  M'NBAI  v.  PHELPS.— 1827. 

evidence.  The  theory  of  our  system  has  been  invaded  by  this 
instruction;  and  a  question  of  great  importance  in  every  case, 
was  determined  in  this  cause  by  the  wrong  tribunal. 

3.  There  was  evidence  of  collusion  between  the  defendants 
and  Kramer,  from  the  benefit  of  which  the  court  below  de- 
barred the  plaintiffs  by  the  positive  and   conclusive  instruc- 
tion given  to  the  jury.     The  facts  established  a  claim  for  the 
plaintiffs;   the  collusion  a9ects  the  defence  relitd  on.      The 
sum  due  from  Kramer  to  M,  Walter,  <§•  Co.  was  borrowed 
on  the   "personal  responsibility"  of  the  former.      This  ap- 
pears from  the  award  in  the  commission.      In  the  proceedings 
between  JV/,  W,  <§•  Co.  and  Kramer,  (the  former  seeking  ex- 
ecution of  their  award  against  the  latter,)  this  same  debt  is 
"Said  to  be    borrowed  by  Kramer  for  Taylor  and  M'Neal. 
There  is  not  the  slightest  evidence  to  show  that  if  Kramer  did 
in  fact  borrow  any  sum  for  Taylor  and  M'Neal,  that  he  dis- 
bursed it  for  their  account.     It  does  not  appear  that  Kramer 
was  the  creditor  of  Taylor  and  M'Neal;  the  contrary  results 
from  the  statement,  that  he  borrowed  money  for  them.     It  is 
unaccountable,  but  on  the  idea  of  collusion,   that  M,    W,  <§• 
Co.   in  endeavouring  to  enforce  an  award  against  Kramer, 
should  suddenly  by  a  new  direction  given  to  the  proceedings, 
obtain  judgment  against  Taylor  and  M'Neal,  they  not  being 
indebted  to  Kramer.     That  Kramer  was  unable  to  pay,  was 
manifest  frdm  all  the  documents;  and  this  shows  the  reason  of 
Ihe  combination.     The  evidence  sufficiently  raises  the  question 
of  fraud;  and  it  should  have  been  left  to  the  jury.     Proceed- 
ings in  a  foreign  attachment,  though  a  good  bat,  must  like  all 
at  her  matters  be  liable  to  impeachment  for  fraud. 

4.  Foreign  laws  are  to  be  compared  with  the"  original,  and 
sworn  to  be  a  true  copy.     2  Esp.  Dig.  439.     Here  there  is  no 
proof  that  the  witness  compared  the  copy;     The  answer  of  the 
witness  to  the  fifth  interrogatory  is  objected  to,  so  far  as  the 
witness  speaks  of  a  judgment  rendered.     Foreign  judgments 
are  not  conclusive.     They  may  be  examined  into.  Barney  vs 
Patterson's  Lessee,  6  Harr.  4*  Johns.  202,  203.     Pawling  vs 
Bird's  E^rs.  13  Johns.  Rep.  206.  It  must  be  established  that  the 
court  had  jurisdiction  over  the  case.     Where  the  party  to  be 
affected  by  the  proceedings  is  not  present,  the  judgment  is  not, 


OF  MARYLAND.  499 


TATLOR  Si  M'NKAL  v.  PHF.LPS. — 1827- 


conclusive,  nor  is  it  evidence  for  any  purpose.  Buchanan  vs 
Rucker,  9  East,  191,  192.  Owings  $•  C  lies  ton  vs  Nicholson 
4*  Williams,  4  Harr.  <§'  Johns.  103,  argument  of  Mr.  Pink" 
ney.  The  act  of  1813,  ch.  164% 

Meredith,  for  the  Appellee.  The  rule  is  well  established  % 
that  where  funds  are  attached  for  the  debt  of  a  person  to  whom 
the  funds  belong,  the  judgment  is  a  bar.  A  person  having  the 
property  of  another,  and  pays  it  over  by  compulsion,  is  exone- 
rated. Le  Chevalier  vs  Lynch,  1  Doug.  170.  Mien  vs  Dun- 
das,  3  T.  P.  125.  Hunter  vs  Potts,  4  T.  R.  187.  Sill  vs. 
Worswick,  1  H.  Blk.  669,  671.  6S3.  Philips  vs  Hunter>2>  H. 
Blk.  408,  410.  M*  Daniel. vs  Hughes,  3  Most,  367.  Emlrce 
vs  Hanna,  5  Johns.  Rep.  101.  Holmes  vs  Remscn,  4  Johns. 
Ch.  Rep.  407.  S.  C.  20  Johns.  Rep.  268.  It  is  admitted  that 
the  judgment  given  in  evidence  in  this  case  is  properly  authen- 
ticated. But  it  has  been  said  that  the  judgment  is  examinable 
for  irregularity.  It  is  well  settled,  that  if  a  foreign  judgment 
comes  collaterally  as  a  defence  in  the  cause,  it  is  conclusive  and 
unexaminable.  Cas.  temp.  Hardw.  83.  Burrows  vs  Jemino* 
2  Stra.  733.  Roach  vs  Garvan,  1  Vex.  159.  Tarleton  vs 
Tarleton,  4  Maule  8f  Selw.  20.  Hamilton  vs  Moore,  3  DalL 
Rep.  372,373,  (note.)  Smith  vs  Lewis,  3  Johns.  Rep.  168, 
169.  Grant  vs  M'Lachlin,  4  Johns.  Rep.  34.  Barney  vs 
Patterson's  Lessee,  6  Harr.  <$•  Johns.  203.  JZmbree  vs  Hanna, 
5  Johns.  Rep.  101.  Holmes  vs  Remscn,  4  Johns.  Ch.  Rep. 
467.  There  is  no  difference  between  a  judgment  in  attachment, 
from  a  judgment  in  any  other  case.  It  may  be  inquired,  1.  \Vas 
the  court  at  Port-au-Prince  a  court  of  competent  jurisdiction? 
2.  Does  it  judicially  condemn  the  debt,  which  is  the  subject  of 
the  present  action?  3.  Is  there  any  evidence  o.f  fraud  or  collu- 
sion as  between  the  defendant  and  the  attaching  creditor? 

1.  The  law  of  the  place  was  produced  in  evidence;  and  if  it 
was  duly  approved,  it  did  authorise  the  proceeding  by  attach- 
ment. It  cannot  be  doubted,  but  that  Kramer  was  a  creditor 
of  the  present  appellants.  Is  the  law  properly  proved?  •  This 
may  be  done  in  one  of  two  ways.  It  may  be  by  an  authenti- 
cated, or  by  a  sworn  copy.  The  witness  docs  not  say  express- 
ly that  he  examined  the  law;  but  it  is  to  be  presumed  frqm  .thf, 


500  CASES  IN  THE  COURT  OF  APPEALS 

TAYLOR  &.  M'NEAL  v.  PHELPS.—  1827. 

interrogatory  propounded,  and  his  answer  thereto,  that  it  was 
a  sworn  copy.  It  cannot  be  doubted  but  that  it  is  a  sworn  copy. 
If  the  law  is  out  of  the  case,  there  is  still  sufficient  prima  facie 
evidence  from  the  record,  to  show  that  the  court  had  jurisdic- 
tion. A  want  of  jurisdiction  must  be  shown  by  him  who  con- 
tests it.  Molony  vs  Gibbons,  2  Campb.  502,  Shmnway  vs 
Tilghman,  4  Cowen's  Rep.  292.  This  court  will  intend  that 
the  court  of  Port-au-Prince  had  jurisdiction  over  the  subject 
matter,  unless  it  is  shown  to  be  otherwise. 

2.  What  does  the  judgment  condemn?     Although  the  record 
has  been  incorrectly  translated,  yet  shows   that  Kramer  was 
indebted  to  the  defendant's  house  In  $797  50,  for  money   bor- 
rowed for  the  appellants  on  Kramer's  own  responsibility,  with 
a  collateral  security  of  debts  due  to  Dennis  and  Brown.     Pro- 
ceedings  were   had  to   enforce  payment  of  Kramer.     A  re- 
ference was  made  to  arbitrators,  who  awarded  that  Kramer 
ehould  pay  to  the  defendant's  house  a  sum  of  money.     The 
award  was  not  complied  with,  and  an   execution  was  awarded 
against  Kramer.   Kramer  then  petitioned  the  court  to  authorise 
this  debt  to  be  deducted  out  of  the  funds  in  the  hands  of  the 
defendant's  house,  belonging  to  the  appellants;  and  this  the  court 
directed  to  be  done. 

3.  No  fraud  appears  in  the  transaction.     Need  not  show  a, 
debt  due  to  the  plaintiff  in  the  attachment.  M'-Danielvs  Hughes, 
3  East,  367.      Under  our  act  of  1715,  ch.  40,  a  person  having 
funds  in  his  hands  belonging  to  his  debtor,  may  attach  the 
amount  in  his  own  hands  to  pay  his  own  debt.      The  case  at  bar 
is  not  stronger,  nor  so  strong,  of  a  case  of  inferred  fraud  than 
our  own  laws  sanction. 


in  reply.  A  judgment  on  a  foreign  attachment  is 
only  prima  facie  evidence  of  a  debt,  when  it  is  to  be  enforced 
in  this  country.  But  it  has  been  said,  that  when  brought  in 
incidentally  it  is  then  conclusive.  The  plaintiffs  were  never 
residents  in  Port-au-Prince,  and  had  no  notice  of  the  proceed- 
ings, now  attempted  to  be  set  up  in  bar  of  their  action.  There 
is  no  difference  when  a  foreign  judgment  is  offered  as  a  set-off, 
and  when  it  is  to  be  enforced.  This  court  did  not,  in  Barney 
ys  Patterson's  Lessee)  6  Harr.  ff  Johns,  202,  say,  that  a  foreiga 


OF  MARYLAND.  501 

TAYLOU  &  M'NEAL  v.  PHELPS.  — 1827. 

judgment  was  conclusive  when  offered  by  way  of  set-off.  There 
the  judgment  was  offered  in  evidence  as  a  link  in  the  chain  of 
the  plaintiff's  title.  There  can  be  no  difference  between  a 
foreign  judgment  to  be  enforced,  and  where  offered  by  way  of 
set-off  0 wings  4*  Chest  on  vs  Nicholson  4'  Williams,  4  Harr. 
$•  Johns.  66,  where  all  the  parties  were  before  the  foreign  tri- 
bunal, and  yet  this  court  decided  that  the  judgment  was  not 
conclusive.  In  all  the  cases  relied  on  by  the  counsel  for  the 
appellee,  the  parties  affected  by  the  foreign  judgment  were,  or 
had  been  resident  of  the  country  in  which  such  judgments  were 
rendered,  To  make  a  foreign  judgment  on  attachment,  evi- 
dence for  any  purpose,  it  must  appear  that  the  defendant  had 
been  a  resident  or  had  been  summoned.  Fisher  vs  Lane, 
3  Wih.  297.  The  record  offered  in  evidence  in  this  case  does 
not  show  that  the  plaintiffs  ever  had  been  summoned,  or  had 
notice,  or  ever  were  under  the  jurisdiction  of  the  court.  Nor 
does  it  appear  that  any  debt  had  been  proved  against  them. 
JBuchananvsRucker,  9  East,  194.  Bordenvs  Fitch,  15  Johns. 
Hep.  121,  142,  143.  To  bind  a  person  by  a  judgment  he  must 
be  a  party  to  the  proceed- ng.  There  is  nothing  to  show  in  this 
case  that  any  proceeding  was  had  by  Kramer  against  the  plain- 
tiffs, so  as  to  attach  the  funds  of  theirs  in  the  hands  of  the  defen- 
dant. Nor  is  there  any  thing  to  show  that  there  was  any  process 
of  attachment  against  the  plaintiffs.  The  statute  law  of  a  foreign 
country  must  be  proved  by  a  copy,  either  properly  authenticat- 
ed, or  sworn  to  be  true.  But  the  common  law  may  be  proved  by 
parol  evidence.  IJere  there  has  bepn  no  legal  proof  of  any  law\ 

BUCHANAN,  Ch.  J.  delivered  the  opinion  of  the  Court.  The 
facts  of  this  case,  as  set  out  in  the  bill  of  exceptions  taken  at 
the  trial,  are  in  substance  these:  F.  */l.  Kramer,  upon  his  own 
responsibility,  borrowed  on  account  of  the  appellants  $797  50, 
from  Montandevert,  JValker  4*  Co  merchants  at  Port-au- 
Prince,  who  sued  and  obtained  judgment  against  him  for  the 
amount  so  borrowed.  To  discharge  himself  from  which,  he 
sued  out  an  attachment  against  the  funds  of  the  appellants,  in 
the  hands  of  Montandevert,  Walker  4*  Co.  consisting  of  a  ba- 
!$nce  of  the  proceeds  of  a  shipment  of  herrings,  amounting  t» 
$459  71,  which  he  recovered  by  a  judgment  of  condemnation 


508               CASES  IN  THE  COURT  OF  APPEALS 
TAYLOR  8c  M'NKAL  v.  PUELPS 1827. 

in  the  civil  tribunal  sitting  at  that  place.  For  the  amount  so 
recovered,  this  suit  was  brought  against  the  appellee,  as  surviv- 
ing partner  of  the  house  of  Montandevert,  Walker  fy  Co.  and 
that  recovery  is  relied  upan  as  a  full  defence  to  the  action, 

No  principle  is  now  better  established,  than  that  where  a 
debt  has  been  recovered  by  attachment  in  a  foreign  court,  the 
recovery  is  a  protection  to  the  debtor,  as  garnishee,  against  his 
original  creditor.  Chevalier  vs  Lynch,  1  Doug.  170.  Philips 
vs  Hunter,  2  H.  Elk.  Rep.  402.  Holmes  vs  Remsen,  4  Johns. 
Ch.  Rep.  460.  S.  C.  20  Johns.  Rep.  229.  Embree  $  Collins 
vs  Hanna,  5  Johns.  Rep.  101,  are  in  point,  with  many  others, 
proceeding  upon  the  same  principle,  to  which  it  is  unnecessary 
to  refer;  and  nothing  could  be  more  unreasonable  and  unjust, 
than  that  a  person,  who  has  been  coerced  by  the  sentence  of  a 
court  of  competent  jurisdiction  to  pay  a  debt  once,  should  be 
compelled  to  pay  it  a  second  time.  It  would  be  any  thing  but 
Tight  and  proper,  and  therefore  not  sanctioned  in  law.  It  may 
indeed  be  said  to  be  hard,  that  a  creditor  should  lose  his  mo- 
ney, without  having  had  an  opportunity  afforded  him  of  being 
heard,  and  perhaps  in  such  cases,  injustice  is  frequently  done. 

These  attachments,  however,  are  resorted  to  by  such  as  claim 
to  be  creditors  of  Ihose  whose  funds  are  sought  to  be  affected; 
and  when  in  truth  they  are  creditors,  no  injury  is  in  fact  done 
to  those  whose  debts  are  attached,  being  only  an  application  of 
their  funds  in  that  form  to  the  payment  of  their  debts,  to  which 
they  might  be  coerced  by  the  attaching  creditors  in  a  different 
form.  It  is  but  the  turning  over  one  debt  in  discharge  of  ano- 
ther. And  in  the  absence  of  any  proof  of  fraud  or  collusion^ 
the  presumption  is,  that  what  is  done  is  rightly  done,  and  that 
the  claim  of  the  attaching  creditor  is  established  to  the  satisfac- 
tion at  least  of  the  court,  in  which  the  judgment  of  condemna- 
tion is  obtained.  Injustice  may,  and  is  sometimes,  but  not  al- 
ways done,  in  that  ex  parte  form  of  proceeding;  but  in  the 
case  of  a  debtor,  it  would  be  extremelv  hard,  that  after  having 
been  made  to  pay  the  debt,  by  the  authority  of  a  court  which 
he  could  not  resist,  he  should  be  compelled  to  pay  it  over  again; 
and  in  every  such  case,  where  he  was  not  himself  tainted  with 
fraud,  &c.  injustice  would  be  done.  And  it  is  not  for  us  to  com- 
{dain  of  the  effects  of  foreign  judgments  in  attachment  on  the 


OF  MARYLAND. 


TAYLOR  &  M'NeAi  v.  PIIELPS.— 1827. 


rights  of  creditors  here;  our  own  attachment  law  has  the  same 
operation  upon  the  rights  of  nonresident  creditors. 

The  cases  relied  upon  by  the  counsel  for  the  appellants,  to 
show  that  foreign  judgments  are  not  conclusive,  are  chiefly 
cases  in  which  they  were  sought  to  be  enforced  by  suits  being 
brought  upon  them;  and  in  such  cases  they  certainly  are  not 
conclusive.  The  distinction  is  between  the  effect  of  a  foreign 
judgment,  when  it  is  sought  to  be  enforced  by  the  party  claim- 
ing the  benefit  (jf  it,  by  bringing  suit  upon  it,  and  when  it  only 
comes  incidentally  in  question.  In  the  former  case  it  is  not 
conclusive,  but  prima  facie  evidence  only,  and  may  be  im- 
peached for  irregularity,  and  rebutted  by  other  evidence.  But 
in  the  latter,  if  it  be  by  a  court  of  competent  jurisdiction,  it 
lias  the  force  and  effect  of  a  domestic  judgment,  and  the  cor- 
rectness of  it  cannot  be  examined  into,  but  it  is  conclusive. 
This  distinction  was  fully  recognized  and  adopted  in  Barney 
vs  Patterson,  6  Plarr.  <$•  Johns.  182. 

.  In  this  case  the  judgment  of  the  civil  tribunal  at  Port-au- 
Prince,  does  come  incidentally  in  question,  and  is  only  intro- 
duced and  relied  upon  by  the  appellee  as  a  protection  against 
the  claim  of  the  appellants,  his  former  creditors,  who  are  seek- 
ing to  compel  him  to  pay  over  again  a  debt,  which  under  pro- 
cess of  attachment  he  has  once  already  been  obliged  to  pay. 

The  jurisdiction  of  the  civil  tribunal  at  Port-au-Prince  is 
not  impeached,  and  however  the  fact  may  have  been,  there  is 
no  evidence  in  the  record  of  any  fraud  or  collusion  having  been, 
practised.  As  far  as  appears  to  us,  and  we  cannot  look  beyond 
the  record,  it  was  the  common  case  of  a  creditor,  attaching  the 
funds  of  his  absent  debtor  in  the  hands  of  a  third  person,  and 
that  is  what  is  done  every  day  in  our  own  courts.  And  it 
would  be  thought  very  strange,  and  hard  too,  by  a  citizen  of 
this  state,  if,  after  being  obliged  by  a  judgment  in  attachment 
in  one  of  our  courts  to  pay  the  amount  of  a  debt  due  from  him 
to  a  citizen  of  Virginia,  he  should  on  going  into  that  state,  be 
subject  to  be  sued  by  his  original  creditor  there,  and  made  to 
pay  the  same  debt  over  again;  and  that  is  exactly  what  it 
is  sought  to  fhake  the  appellee  do  in  this  case,  but  which  the 
law  will  not  sanction. 

JUDGMENT  AFFIRMED. 


,504     CASES  IN  THE  COURT  OF  APPEALS* 

BALTZELL  v.   Foss. — 1827. 

J.  &.C.  BALTZELL  vs.  Foss,  ct  al. — June,  1827. 

The  lands  of  which  G  F  died  seized,  on  the  application  of  his  heirs,  were 
sold  under  an  order  of  the  court  of  chancery,  by  a  trustee  appointed  for 
that  purpose,  to  J  &  C  B,  and  the  sale  was  ratified.  The  purchasers 
vf  ere- creditors  of  J  F,  one  of  the  heirs,  and  filed  a  petition  setting  forth 
their  claim,  the  death  of  J  F,  that  his  children,  who  were  minors,  resided 
5n  Illinois,  and  praying  an  order  of  publication  against  them,  and  payment 
of  their  debt;  it  did  not  state  that  J  F's  personal  estate  was  insufficient 
to  pay  his  debts.  The  chancellor,  without  granting  any  order  of  publi- 
cation, dismissed  the  petition  at  once.  On  appeal,  it  was  held,  that  cre- 
ditors may,  by  way  of  petition,  instead  of  pursuing  the  accustomed 
course  of  an  original  bill,  affect  funds  under  the  control  of  chancery 
Upon  the  same  terms  that  they  might  by  bill,  and  that  notwithstanding* 
the  defect  in  the  petition  in  this  case,  the  chancellor  erred  in  deciding 
the  merits  of  the  petition  -without  publicationjOr  without  an  answer,  and 
without  setting  it  down  for  hearSng;  as  the  right  existed  the  petition  might 
have  been  amended,  and  the  defect  cured,  if  the  proceedings  had  pro- 
gressed to  a  hearing;  and  to  enable  the  petitioners  to  subject  the-  funds 
in  question  to  the  payment  of  debts,  they  must  show  either  that  no  per- 
sonal fund  existed  applicable  to  the  extinguishment  of  their  claims,  or 
that  they  are  insufficient  for  that  purpose,  and  must,  in  addition,  establish 
their  claims  in  the  customary  method. 

The  acts  of  1785,  ch.  72,  and  1794,  cfi.  60,  s.  2,  are  in  pan  maieria,  and 
where  proceedings  are  had  under  the  one  taw  or  the  other,  to  sell  real 
property  for  the  payment  of  debts,  evidence  of  an  insufficiency  of  assets 
will  be  required. 

APPEAL  from  the  Court  of  Chancery.  This  case,  the  facts 
of  which  are  stated  by  the  Judge  who  delivered  the  opinion  of 
this  court,  was  argued  before  BUCHANAN,  Ch.  J.  and  EARLE, 
MARTIN,  STEPHEN,  ARCHER,  and  DORSEY.  J.  by 

Williams,  (District  Attorney  of  U.  S.J  for  the  Appellants j 
and  by 

Scott,  for  the  Appellees. 

ARCHER,  J.  delivered  the  opinion  of  the  Court.  The  repre- 
sentatives of  John  Foss,  Jacob  Foss  and  George  Foss.  minors, 
by  Mary  Foss  their  next  friend,  the  said  Mary  ^os.t  and  the 
widow  of  George  Foss,  jr.  Jinn  Foss,  M'/rgaret  Fuss,  Tho- 
mas Owens  and  EHzabeth  his  wife,  Christiana  S'idler.  Jo- 
seph Foss  and  Catharine  Foss,  the  representatives  of  Gznrge 
Foss,  of  the  city  of  Baltimore,  applied  to  the  court  of  chance- 
ry for  the  sale  of  the  real  estate  of  which  George  Foss  died 
seized,  alleging  that  some  oi  the  representatives  were  minors. 


OF  MARYLAND.  505 


BALTZELL  v.  Foss. — 1827. 


and  that  a  sale  would  be  conducive  to  their  interest.  The  court 
of  chancery  having  instituted  such  inquiries  as  were  required 
by  law  for  the  purpose  of  ascertaining;  the  value  of  the  real  es- 
tate of  George  Foss,  and  whether  it  would  be  conducive  to  the 
interest  of  the  parties  that  it  should  be  sold,  decreed  the  sale  of 
the  real  estate  as  prayed  for  by  the  petition,  and  appointed  a 
trustee  for  that  purpose,  who  in  the  execution  of  the  trust  com- 
mitted to  him,  exposed  the  lands  to  sale,  and  reported  to  the 
court  that  Jacob  and  Charles  Balizcll,  (the  appellants,)  be- 
came the  purchasers  of  certain  portions  of  the  real  estate  to  the 
amount  of  $3335.  This  sale  was  ratified  and  confirmed  by 
the  court  on  the  24th  of  September  1S25. 

On  the  26th  of  October  following,  Jacob  and  Charles  Baltz- 
el/,  the  purchasers,  by  petition  represented  to  the  chancellor, 
that  Catharine  Foss,  one  of  the  heirs  of  George  Foss,  was  in- 
debted to  them  in  the  sum  of  $918  13,  and  that  John  Foss, 
Joseph  Foss  and  Catharine  Foss,  three  other  heirs  of  George 
Foss,  were  jointly  and  severally  indebted  to  them  in  a  note  for 
$1958  58,  with  interest  irom  the  26th  of  December  1822, 
which  claims  were  exhibited  with  the  petition,  and  prayed  the 
chancellor  to  order  that  the  trustee  should  credit  them  on  ac- 
count of  their  purchases  to  the  extent  of  their  claims  against 
the  representatives  entitled  to  a  distributive  sha^  of  the  pro- 
ceeds of  the  estate;  which  prayer  was  conditionally  granted, 
and  an  order,  in  conformity  thereto,  was  passed,  directing  the 
credit  to  be  given,  provided  cause  should  not  be  shown  to  the 
contrary  on  or  before  the  20th  of  November  1824.  Answers 
were  filed  to  this  petition  by  Catharine  Foss,  Joseph  Fats  and 
Christiana  Sadler.  No  answer  seems  ever  to  have  been  filed 
by  the  representatives  of  John  Foss,  nor  does  it  appear  that  a 
copy  of  the  chancellor's  order  was  eve?  served  on  them.  In 
this  state  of  the  proceedings  the  chancellor  dismissed  the  peti- 
tion of  Jacob  and  Charles  Baltzell,  on  the  7th  of  January 
1825.  Afterwards  the  petitioners  renewed  their  petition,  pray- 
ing, under  the  circumstances  which  they  have  stated,  that  their 
application  should  be  reinstated,  and  that  the  chancellor  would 
review  his  decree  dismissing  their  petition.  It  alleged  the  pay- 
ment of  all  the  debts  of  George  Foss  by  his  executrix,  before 
the  application  for  the  sale  of  his  lands  by  his  representatives— 
VOL.  i.  64 


BALTZKLL  v    Foss. — 1827. 


averred  that  John  Foss  had  died  in  the  state  of  Illinois,  and 
prayed  publication  against  his  legal  representatives,  who  are 
parties  to  the  bill;  and  they  furthermore  withdrew  all  applica- 
tion for  a  reimbursement  from  the  amount  of  their  purchases 
to  the  extent  of  any  claim  they  had  against  all  or  any  of  the 
representatives  of  George  Foss,  except  as  against  the  children 
and  legal  representatives  of  John  Foss. 

No  order  for  publication  ever  passed  in  conformity  with  the 
prayer  of  the  petitioners;  but  the  court,  acting  on  the  petition, 
decreed  at  once  its  dismissal,  upon  the  ground  that  the  petition- 
ers' remedy  was  at  law;  and  from  this  order  an  appeal  has 
fceen  taken. 

This  court  are  not  aware  of  any  remedy  which  the  petition- 
ers could  have  for  the  recovery  of  their  claim  against  the  heirs 
of  John  Foss,  if  his  personal  estate  be  insufficient  to  pay  his 
debts,  other  than  that  which  they  have  been  pursuing.  Un- 
less there  are  personal  assets,  if  they  are  left  to  law,  they  are 
entirely  remediless.  The  law  has  pointed  out  no  mode  by 
which  its  process  could  reach  these  funds,  which  are  in  chance- 
ry for  distribution.  They  may  not,  strictly  speaking,  be  said 
to  be  in  litigation,  but  they  are  under  the  control  and  power  of 
a  court  of  equity,  whose  jurisdiction,  courts  of  law  could  not 
be  permitted,  by  its  process,  to  oust. 

The  act  of  1794,  ch.  60,  s.  2,  authorises  the  sale  of  the  lands 
of  nonresidents,  which  they  shall  derive  by  descent  or  devise, 
for  the  payment  of  the  debts  of  the  person  from  whom  they 
descend,  or  by  whom  they  are  devised,  and  makes  no  provision 
relative  to  a  deficiency  of  personal  estate.  But  the  act  of  1785, 
ch.  72,  requires  that  the  personal  estate  shall  be  insufficient  for 
the  payment  of  debts  before  the  real  estate  of  the  deceased 
shall  be  subjected  to  sale  for  their  payment,  and  is  general  in 
its  terms.  The  act  of  1794,  above  referred  to,  is  supplemen- 
tary to  the  act  of  1785,  and  is  in  pari  materia.  They  must, 
therefore,  be  construed  together;  and  evidence  will  be  requir- 
ed, of  an  insufficiency  of  assets,  where  proceedings  are  had 
under  the  one  law  or  the  other. 

The  petitioners  then,  to  entitle  themselves  to  a  favourable 
judgment,  and  to  subject  these  funds  to  the  payment  of  debts, 
must,  before  they  can  succeed,  show,  either  that  no  personal 


OF  MARYLAND.  5Q7 


BAETZF.LL  t1.  Foss. — 1827. 


existed  applicable  to  the  extinguishment  of  their  claims, 
or  that  they  are  insufficient  for  that  purpose;  and  must,  in  ad- 
dition, establish  their  claims  in  the  customary  method. 

The  petition  is  informally  and  untechnically  drawn,  and  is 
indeed,  defective  in  substance  in  not  alleging  one  or  the  other 
of  the  above  facts  indispensable  to  give  jurisdiction  to  the 
court  in  their  final  decree,  and  it  would  also  seem  to  require 
amendment  in  its  prayer,  which  designates  the  object  it  desires 
to  attain. 

It  cannot,  at  this  day,  be  questioned  but  that  creditors  may 
by  way  of  petition,  instead  of  pursuing  the  accustomed  course 
of  an  original  bill,  afieet  funds  situated  as  are  these;  yet  unless 
the  petitioners  are  the  only  creditors  of  Foss,  they  could  not 
have  the  entire  fund  going  to  these  representatives,  applied  to 
the  extinguishment  of  the  purchase.  Such  a  course  would  be 
doing  injustice  to  other  creditors,  if  such  existed;  but  they 
could  be  permitted,  as  on  an  original  bill  by  a  single  creditor, 
to  come  in  for  their  distributive  share. 

Notwithstanding  the  defects  in  the  petition  to  which  we  have 
adverted,  we  conceive  the  court  erred  in  deciding  the  merits  of 
the  petition  without  publication  or  without  an  answer,  and  with- 
out setting  it  down  for  a  hearing.  We  cannot  say,  had  the  pub- 
lication been  ordered,  or  had  it  been  refused  merely  without 
any  decision  on  the  merits  of  the  petition,  but  that  an  amended 
petition  might  have  been  filed — the  right  existing  to  do  so;  nor 
can  we  say  that  the  respondents  might  not  have  confessed  all 
the  necessary  facts  by  answer,  or  failing  to  answer,  upon  an 
amended  petition  being  filed  and  publication  made,  that  the  ne- 
cessary proofs  would  not  have  been  adduced  to  have  enabled 
the  chancellor  to  have  decreed  the  application  of  these  funds  to 
the  extinguishment,  so  far  as  they  would  go,  of  the  debts  of 
thp  deceased,  and  among  the  rest  that  of  the  petitioners.  The 
order,  therefore,  of  the  chancellor,  dismissing  the  appellants' 
petition,  is  reversed. 

ORDER  REVERSED. 


AN 


INDEX 


TO    THB 


CONTAINED  IU  THIS  VOLUME. 


ABATEMENT. 

Sic  Ejectment  1. 

ABSCONDING. 

See  Slaves  1. 

ACKNOWLEDGMENT. 

See  Limitation  of  Actions. 

ACTION  &  ACTION  ON  THE 
CASE. 

1.  A  promise  by  a  debtor  to  his  credi- 
tor to  pay  his  debt  to  a  third  per- 
son, will  not  enable  such  person  to 
maintain  an  action  at  law,  in  his 
own  name,   for  its  recovery.     Ow- 
ingti's  Ex'rs.  v  Owings,          •     484 

2.  Where  one  person  pays  money  to 
another  for  the  use  of  a  third  per- 
son, or  where  a  person,    having 
ready  money  belonging  to  another, 
agrees   with   that  other  to  pay  it 
over  to  a  third  person,  in  both  these 
cases  an  action  may  be  brought  in 
the  names  of  the  persons  benefi- 
cially interested.  /£. 

3.  A  promise  to  one  to  pay  a  sum  of 
money  to  several  other  persons  in 
equal  portions,   where  it  was  not 
the   intention  of  the    contracting 
parties,   that  such    other   persons 
should  receive  or  recover  by   Jaw, 
the  entire  sum,  and  then  divide   it 
among  themselves,  if  the  founda- 
tion of  an  action  at  all,  it  will  con- 
fer a  right  to  maintain  a  separate 
action  for  each  part.  Ib, 

See  Assumpsit  5,  6. 

ADMINISTRATION. 
1.  It  is  not  consistent  with  the  policy 


of  the  law  to  encourages  agree- 
ments, by  which  the  right  to  ad- 
minister on  the  estates  of  deceased 
persons,  is  declined  in  favour  of 
one,  who  contracts  to  pay  the  de- 
clining party  for  permission  to  ad- 
minister, all  the  commissions  al- 
lowed for  the  settlement  of  such 
estates,  as  in  bad  hands  the  prac- 
tice might  lead  to  gross  violations 
of  trusts,  and  the  most  pernicious 
consequences.  Owings's  Ex'rs.  v 


See  Orphans  Court  1. 

ADMINISTRATOR. 

See  Executors  &  Administrators. 

ADMISSION. 
See  Assets  1. 
-  Limitation  of  Actions  5,  12,  13. 

AGENT. 

See  Assumpsit  2. 

AGREEMENT. 

1.  Where  an  agreement  does  not  de- 
signate  the  person  to  whom  its  con- 
sideration is  to  be  paid,  the  law- 
will  raise  an  assumps'f,-  and  this  is 
always  implied  in  favour  of  those 
who  are  the  meritorious  cause  of 
action,  or  from  whom  the  conside- 
ration moves.  Higdont  et  ux.  v 
Thomas,  jgg 

See  Administration  1. 

-  Contract. 

-  Husband  &  Wife  6,  7. 

-  Statute  of  Frauds  1,  2,  3,  4. 

ALIEN. 

1.  An  alien  may  purchase  lands,  and 
hold  them  against  every  one,  (ex* 


INDEX. 


cept  the  State,)  until  office  found, 
or  until  the  government  shall  exer- 
cise its  authority  over  them;  but  by 
the  common  law  a  feme  covert,  be- 
ing an  alien,  i#  not  entitled  to  he 
endowed,  nor  to  inherit  lands.  Bu- 
chanan v  Deskon,  et  al.  -80 

ALLEGATION. 
See  Bill  of  Complaint. 
—  Court  of  Chancery  2. 
— --  Declaration  1. 
Verdict  1. 

AMENDMENT. 

1.  When  an  amendment  of  the  plead- 
ing is  made  at  the  trial  under  the 
act  of  1809,  ch.  153,  s.  1,  time  is 
to  be  given  during  the  term  to  the 
adverse  party   to   prepare  to  sup- 
port his  case;  yet  the  cause  is  not, 
therefore,  to  be  continued,  unless 
the  court  shall  be  satisfied  that  a 
continuance  is  necessary.     Union 
Sank  of  Maryland  v  Ridgely,   324 

2.  The  discretion  vested  in  the  courts 
by  the  act  of  1809, -ck.  153,  to  or- 
der and  allow  amendments  to  be 
made  in  all  proceedings  whatever 
before  verdict,   so  as  to  bring  the 
merits  of  the  question  between  the 
parties  fairly   to  trial,   is  not  a  ca- 
pricious but  a  sound  legal  discre- 
tion?  to  the   proper  exercise    of 
•which  the  party  claiming  it  is  en- 
titled, and  from  which  he  cannot 
properly  be  debarred  by  any  rule 
that  is  the  mere  creature  of  the 
court.  Ih 

ANSWER  TN  CHANCERY. 

1.  It  is  a  general  ruK  that  an  answer 
responsive  to  the  bill  of  complaint, 

•  is  evidence  for  the  respondent;  but 
the  answer  of  a  defendant,  when 
it  asserts  a  right  affirmatively,  in 
opposition  to"  the  plaintiff's  de- 
mand, is  not  evidence.  S-  y  T. 
fiincgold  v  M.  Ringgold,  et  al.  1 1 

2.  An  answer  will  not  support  a  mat- 
ter set  upin  avoidance  or  discharge, 
\vhere  the  matter  of  avoidance  is  a 
distinct  fact;  in  such  a  case,  the 
defence  must  be  proved.  '  Ib. 

3.  On  a  general  bill  to  account,  the 
answer  is  no  evidence  of  disburse- 
ments; such  a  bill  is  nothing  more 
than  a  demand  on   the   defendant, 
to  show  his  receipts,  and  the  legal 
sufficiency  of  his  expenditures.  Ib. 

4.  In  all  cases,  where  a  complainant 
seeks  a  discovery  and  relief,  and  to 


make  out  his  case  applies  himself 
to  the  conscience  of  the  defendant, 
if  in  his  answer  the  liability  is  once 
admitted,  there  can  be  no  escape 
from  it,  but  by  proof;  though  every 
thing  which  he  says  with  regard 
to  the  creation  of  that  liability, 
must  be  taken  together.  Ib, 

ANTE-NUPTIAL  SETTLEMENT. 

See  Husband  &  Wife  6,  7. 
— —  Marriage  1,  2. 

APPEAL. 

1.  The  setting  aside   a  judgment  a- 
gainst  the  casual  ejector,  on  motion 
of  the   landlord   of  the   tenant   in 
possession,  awarding  restitution  of 
the  premises,  and  ordering  the  ac- 
tion to  be  tried,  is  but  an  interlocu- 
tory proceeding,   from   which   an 
appeal  will  not  lie;  and  the  refusal 
of  the  court  below   to  reconsider 
such  proceedings,   does  not  alter 
the  case.      Gover,  el  al.  Lessee  v 
Cooky, 

2.  By  the  act  of  1818,  ch.  204,  ap- 
peals from  the  orders  and  decisions 
of  the   orphans  courts,   must    be 
taken  within  thirty  days  after  such 
order  or  decision.      See  ORPHANS 
COURT    1,   and     Sewell  v  Sewell's 
Adm'r.  D.  B  N. 

3.  Will  an  appeal  lie  from  an  order 
of  the  orphans  court  granting  let- 
ters of  administration'  Quere      Ib. 

4.  Where   a  record   had   not   been 
transmitted  to  the  appellate  court 
under  an  appeal  or  writ  of  erroiv 
that  court  will  lay  a  rule  on  the 
appellant  or  plaintiff  in  error,  and 
clerk  of  the  court  where  the  ap- 
peal was  had,  or  to  which  the  writ 
of  error  was  directed,    to    show 
cause,  &c.     On  the  record  being 
filed,  the  court  will,   if  it  be  the 
regular  term  for  judgment  in  case 
the  record  had  been  duly  returned, 
and  no  counsel  appearing  for  the 
appellant  or  plaintiff  in  error,  dis- 
miss the  appeal  or  writ  of  error. 
Bourne  v  Mackall, 

5.  An  appeal  does  not  lie  from  the 
refusal  of  the  county  court,  on  mo- 
tion  of  an    insolvent    debtor,    to 
grant  a  rule  on  the  trustee  of  such 
insolvent,  who  had  given  the  usual 
bond,  requiring  him  to  show  cause 
why  his  appointment  should  not 
be  revoked.     Chase  v  Glenn,    160 

6.  On  an  appeal  from  chancery,  the 
appellate  court  decrees  only  in  re- 
lation  to  the  rights  of  those  who 


INDEX. 


are  parties  to  the  appeal.   Leaden- 
ham's  Ex'r  v  Ni.cfujlion,  et  al,  257 
See  Amendment  2. 

ASSETS. 

I.  An  administrator  who  relies  on  the 
general  issue  plea,  after  verdict, 
and  judgment  thereon,  has  admit- 
ted assets  to  pay  the  amount  of  the 
claim  against  him.  Giles,  Adm'r, 
of  Bacon,  v  Ferryman,  164 

12.  The  act.-,  of  assembly  of  1785,  ch. 
72,  and  1794,  ch.  60,  s.  2,  are  in 
pari  materia,  and  where  proceed- 
ings are  had  under  the  one  law  of 
the  other,  to  sell  real  property  for 
the  payment  of  debts,  evidence  of 
an  insufficiency  of  assets  will  be  re- 
quired Baltzdl  v  Foss,  el  al.  504 

See  Averment  1 

-    —  Declaration  4. 

' Insolvent  Debtor  1. 

ASSIGNMENT. 

See  Assumpsit  7,  8,  9. 

ASSUMPSIT. 

1.  After  verdict  in  an  action  of  as- 
sumpsit  by  an  administrator,  a  de- 
fective allegation  in  the  declarati- 
on, of  the  promise  to  the  adminis- 
trator, and  tile  death  of  the  intes- 
tate, and  an  omission  to  mafce  pro- 
fert  of  the  letters  of  administration, 
cannot    be    taken    advantage    of; 
though  they  might  have  furnished 
good  causes  of  demurrer.      Van- 
d'Tsmith  v  Washmein's  Adm'r.       4 

2.  W,  being  taken  sick  at  the  house 
of  V,  deposited  in  his  hands  a  sum 
of  money,  and  directed  V  to  send 
fora  physician,  to  furnish  him  with 
every  thing  that  was  necessary,  and 
to  apply  the  money  to  the  payment 
of  the  physician's  bill,  and  of  any 
expenses  which  might  be  incurred 
*>u  his  account  during  his  sickness. 
V  did  send  for  a  physician,  and 
furnished  W  with  every  necessary 
and  attendance  during  his  sickness, 
which  in  a  few  days  ended  fatally. 
On  his  death,  V  paid  all  the  ex- 
penses, including  the  physician's 
bill.      In   an   action   of  assumpsit 
brought  against  V  by  W's  adminis- 
trator, to    recover   the   amount  of 
the  deposit — Held,  that  V  was  to  be 
allowed  for  the  amount  paid  to  the 
physician,  if  it  was  such  as  he  was 
entitled  to  receive,  as  well  as  the 
other  expenses.      That  the   fund 
placed  in  his  hands  by  W,  was  to 
be  considered  as  a  special   fund, 

.and  th£t  in  relation  to  it  lie  was  to 


be  looked  upon  as  a  trustee,  of 
agent,  of  the  physician,  for  whose 
remuneration  it  was  in  part  creat-. 
ed;  but  that  it  would  have  been 
otherwise  if  V  had  received  the 
deposit  for  safe  keeping  only.  Ib. 

6 

o.  When  an  agreement  does  not  de- 
signate the  person  to  whom  its  con- 
sideration is  to  be  paid,  the  law 
will  raise  au  assumpsit;  and  this  is 
always  implied  in  favour  of  those 
who  are  the  meritorious  cause  of 
action,  or  from  whom  the  conside- 
ration moves.  Ifigdon,  tt  ux.  v 
Thomas,  139 

4.  The  action  for  money  had  and  re- 
ceived, is  an  equitable  action,  and 
equally  as  remedial  in  its  efTVctsas  a 
bill  in  equity.     Murphy  v  Barron, 

.5B 

5.  If  one  man  takes  another's  money 
to  do  a  thing,  and  he  refuses  to  d» 
it,  it  is  a  fraud;  and  it  is  at  the  elec- 
tion of  the  party  injured,  either  to 
affirm  the  agreement,  by  bringing 
an  action  for  the   nonpayment  of 
the  money,  or  to  disaffirm   the  a- 
greemv-nt  ab   initio,  by   reason   of 
the   fraud,  and  bring  an  action  for 
money  had  and  received  to  his  use. 

Ib, 

6.   But  where  a  vendor  was  ex- 
onerated from  the  deliver}'  of  a 
slave  then   out  of  his    possession, 
whom  he  had  sold  and  puid  for,  and 
afterwards  persuaded  or  enticed  to 
abscond,  so  that  the  purchaser  ne- 
ver got  possession  of  him,  no  ac- 
tion can  be  maintained   upon  the 
contract  of  sale  for  a  nondelivery, 
or  to  recover  back   the  purchase 
money,  as  money  had  and  receiv- 
ed by  him  to  the  use  of  the  ven- 
dee.      Either  action  could    have 
been  maintained,  if  it  had  been  the 
vendor's  duty  to  deliver  the  slave, 
and  he  had  refused.     The  proper 
temedy  here  is  a  special  action  on 
the  case  for  persuading  or  enticing 
the  slave  to  abscond.  Ib. 

7-  A  promise  by  a  debtor  to  his  cre- 
ditor to  pay  his  deb*  to  a  third  per- 
son, will  not  enable  such  third 
person  to  maintain  an  action  of  as- 
sumpsit in  his  own  name  for  its  re- 
covery. Owings'.s  Ex'rs,  v  Owings, 
484 

8.  Where  a  person  pays  money  to 
another  for  the  use  of  a  third  per- 
son, or  where  a  person  having  mo- 
ney belonging  to  another,  agrees 
with  that  other  to  pay  it  over  to  a 
third  peraon,  in  both  thsss  cases 


512 


INDEX. 


actions  of  assumpsit  may  be 
brought  in  the  names  of  the  per- 
sons beneficially  interested.  Ib. 

9.  A  promise  to  one  to  pay  a  sum  of 
money  to  several  other  persons  in 
equal  portions,  where  it  was  not 
th»  intention  uf  the  contracting 
parties  that  such  other  persons 
should  receive  or  recover  at  law 
the  entire  sum,  and  then  divide  it 
among  themselves,  if  the  founda- 
tion of  an  action  at  all,  it  conferred 
a  right  to  maintain  a  separate  ac- 
tion for  each  part.  Ib. 

See  Declaration  2,  3, 

ATTACHMENT. 

1.  Where  a  deht  has  heen  recovered 
by  attachment   in. a  foreign  covirt, 
the  recovery  is  a  protection  to  the 
debtor,  as    garnishee,    against    his 
original    creditor.  Taylctr     W 
M'Neal  v  P helps,  492 

2.  In  the  absence  of   any  proof-  of 
fraud  or  collusion,  the  presumption 
is,  that  what  was  done  under  a  fo- 
reign attachment,  was  rightly  done, 
and  that  the  claim  of  the  attaching 
creditor  was  established  to  the  sa- 
tisfaction, at  least  of  the  court,  in 
vhich  the  judgment  of  condemna- 
tion was  obtained.  Ib. 

3.  The  judgments  of  foreign  courts 
of    competent  jurisdiction,   when 
they  c'pme  incidentally  in  question 
— as  where  they  are  relied  upon 
by  garnishees  as  a  protection  a- 
gainst  the  claims  of  their  former 
creditors,  have  the  force  and  effect 
of  domestic  judgments,   and  are 
conclusive.  Ib. 

AUDITOR'S    RETORT. 
See  Exceptions  1. 

AUTHENTICATION. 

See  Statute  of  Frauds  1,  2,  3,  4. 

AVERMENT. 

1..  WliTe  it  need  not  be  averred  in 
a  declaration  in  an  action  against 
an  administrator  in  bis  own  right 
that  he  had  assets  in  his  hands  of 
liis  intestate  sufficient  to  pay  the 
plaintiff's  demand.  Giles,  Jldm'r. 
of  flncon,  v  Perry  man,  164 

See  Declaration  1,  2,  4,  7,  8. 


BAIL. 

2.  A  writ  of  sclre  facias  against,  spe- 
cial bail,  which  does  not  recite  the 
issue  and  return  of  a  ca.  «a.  ag-iinst 
ttie  principal,  is  sufficient  upon  is- 


sue joined  on  the  plea  of  nul  tiel 
record  Cappeau's  Sail  v  Middle- 
ton  &f  Baker,  154 

2.  —  To  such  writ,  the  bail  having 
pleaded  the  death  of  his  principal 
before  any   ca.   sa.   returned,    the 
plaintiff  in  his  replication  traversed 
that  fact,  and  tendered  an  issue  to 
the  country.     Its   conclusion    was 
technically  right.     An  issue  join- 
ed on  such  pleadings,  is  not  an  im- 
material one — the  whole  matter  in 
controversy  being1  decided  by  it. 

Ib. 

3.  The  omission  of  the  plaintiff  in 
his  replication  to  set  out  the  ca.  sa. 
and  return,  in  the  proceedings  a- 
gainst  hail,  is  mere  informality  in 
pleadings,  bad  only  on  demurrer, 
and  cured  by  verdict.  Ib* 

BANK. 

See  Corporation. 

BARGAIN  &  SALE. 

See  Consideration  1,  2,  3. 
Delivery  1. 

BARON  &  FEME. 

See  Husband  and  Wife. 

BEQUEST, 
See  Devise. 

BILL  OF  COMPLAINT. 

(See  Court- of  Chancery  2,  3,4,  5,  C. 

BILL  OF  EXCEPTfONS. 

See  Evidence  23. 

BILL  OF  EXCHANGE. 

1.  The  drawer  of  a  dishonoured  billot" 
exchange,  who  neither  at  the  time 
he  drew  it,  nor  when  it  was  pre 
sented,  had  any  funds  in  the  hand,1* 
of  the  drawee,  nor  such  expecta- 
tion of  its  payment  as  would  in- 
duce a  merchant  of  common  pru- 
dence and  ordinary  regard  for  his 
commercial  credit  to  draw  a  like 
bill,  is  not  entitled  to  notice  of  such 
distionour.    Cathell  v  Goodwin,  46S 

2.  Where  the  defendant  drew,  a  bill 
of  exchange  in  favour  of  the  plain- 
tiff's wife,  and  thus  authorised  her, 
in  express  terms,  to  receive   its  :i 
mount — the  bill  being  presented  by 
her,  and  payment  refused,  in  an  ac 
tion  on  the  bill  by  the  husband,  the 
defendant   cannot  deny  the  wife's 
right  to  demand,  its  payment.      Ib. 

3.  Whether  or  not  the  drawer  of  :\. 
bill   of  exchange  had  reasonable 
grounds  to  expect  tliat  the    bill 


INDEX. 


513 


Would  be  honoured,  (and  the  facts 
upon  which  that  question  arises 
are  admitted  or  undeniable,)  it  is 
exclusively  a  matter  of  law  to  be 
pronounced  by  the  court;  but  if 
the  facts  be  controverted,  or  the 
proof  be  equivocal,  or  contradic- 
tory, then  it  becomes  a  mixed  ques- 
tion, both  of  law  and  fact,  in  which 
case,  the  court  hypothetically  in- 
struct the  jury  as  to  the  law,  to  be 
by  them  pronounced  accordingly 
as  they  may  find  the  facts.  Ib. 

4.  Under  the  money  counts  the  pl:iin- 
tift'  may  recover,  by  evidence  of 
the  defendant's  dishonoured  bill  of 
exchange,  drawn  payable  to  the 
order  of  the  plaintiff's  wife — the 
drawer,  under  the  circumstances  of 
the  case,  not  being1  entitled  to  no- 
tice of  th^i  nonpayment  of  his  bill. 

Jb. 

See  Promissory  Note. 

BILL  OF  SALE. 

J.  A  bill  of  sale  of  a  sheriff  for  chat- 
tels levied  on  and  sold  by  him,  is 
improper  testimony  in  itself,  how- 
ever it  may  be  considered,  accom- 
panied by  proof  of  the  sheriff's  au- 
thority to  sell  the  property  it  pro- 
fessed to  convey.  Sanderson's  Ex'ra. 
v  Marks,  252 

BOND* 

See  Contract. 

Itecita!. 

BREACHES. 

See  Declaration  2. 
Pleading. 


CAUSE  OF  ACTION. 

1.  A  receipt  given  of  a  sum  of  money 
borrowed,  whereby  the  person  bor- 
rowing undertook  to  return  the 
money  "when  called  on  to  do  so," 
creates  a  cause  of  action  from  its 
date,  bearing  interest,  and  against 
which  the  act  of  limitations  begins 
to  run,  from  that  time.  Hawaii's 
Ex'rs.  v  Magruder,  439 

See  Action  &.  Action  on  the  Case. 

CHANCERY. 
See  Court  of  Chancery. 

CHILDREN  St  GRANDCHILDREN 
See  Distributee  &  Distribution. 

CHOSE  IN  ACTION. 

See  Husband  &  Wife. 

VOL.  I.  65 


COLLATERAL  RELATIONS. 

See  Distributee  &.  Distribution. 

COMMISSION  &    CQMMISSSION- 
KKS. 

1.  The  power  conferred  on  a  com- 
missioner to  take  testimony  is  strict- 
ly  personal.  Especial  confidence  is 
presumed  to  be  reposed  in  the  per- 
son appointed,  and  he  cannot  dele- 
gate his  authority.  Cappeau's  Bail 
v  Middleton  £•?  Baker,  154 

2.  If  the   government  of  the  place 
where  a  commission  has  issued  to 
take  testimony,  will  not  permit  it 
to  be  executed,  the  court  here  will 
issue  Letters  Rogalory  for  the  pur- 
pose of  obtaining- tesmony.  Ib.  157', 
("note.J 

COMMISSIONS. 
See  Administration  1- 

•  Court  of  Chancery  7. 

Trust  £.  Trustees  15. 

COMMON  RECOVERY. 

See  Estate  Tail  I . 

COMPETENT   WITNESS  &  EVI- 
DENCE. 

See  Corporation  1,  2. 
Witness  2. 

COMPOUND  INTEREST. 

See  Trust  Si  Trustees  13 

CONSIDERATION. 

1.  Marriage  cannot  be  given  in  evi- 
dence as   the  consideration  of   a 
deed  of  bargain  and  sale  expressed 
to  be  made  for  a  money  considera- 
tion.    Bet  Is,  et  ux.   v  The  Union 
Sank  of  Maryland,  175 

2.  The  greatest  extent  to  which  the 
authorities  have  gone,  has  been  to 
allow  an  additional  consideration 
to  be  proved,  which  is  not  repug- 
nant  to  the  one  mentioned   in  the 
deed;  but  where  a  deed  is  impeach- 
ed for  fraud,  the  party  to  whom  the 
fraud  is  imputed,  will  not  be  per- 
mitted to  prove  any  other  conside- 
ration in  support  of  (he  deed.  Ib. 

3.  Ante-nuptial  settlements  made  in 
consideration  of  marriage,  are  good, 
even  though  the  party  be  then  in- 
debted. Ib, 

CONSTRUCTION. 
1.  A  court  cannot  be  aided  in  the 
construction  of  any  agreement  by 
the  acts  which  the  parties  may  have 
done  under  it,  nor  is  a  party  boand 
by  any  construction  which  he  may 


514 


INDEX. 


have   put    upon    the   instrument. 

jRinggold  v  Minggold,  74 

See  Contract. 

Descent. 

Devise. 

Limitation  of  Actions. 

Statute  of  Frauds. 

CONTRACT. 

1.  In  construing  a  bond  the  court 
must  look  to  the  intention  of  the 
parties  at  the  time  it  was  executed, 
and  the  contract  must  be  expound- 
ed as  the  law  was,  when  the  Con- 
tract was  made.     Union  Bank  of 
Maryland  v  llidgely,  324 

2.  Where  an  act  of  incorporation, 
under  which  a  bond  was  taken  1o 
secure  the  good  conduct  of  one  of 
the  officers  of  the  corporation,  was 
limited  in  its  duration  to  a  certain 
period,  the  bond  must  hnve  the 
same  limitation;  because  the  par- 
ties, looking  to  that  act,  it   would 
seem  to  be  very  clear  that  no  re- 
sponsibility was  contemplated  be- 
yond the  period  of  its  specified  ex- 
istence. The  extension  of  the  char- 
ter beyond  the   period  of  its  first 
limitation  by  legislative  authority, 
does  not  enter  into  the  contract, 
and  cannot  enlarge  it.  lb. 

3.  On  the  25th  of  January  1817,   D, 
agreed  with  VV,  under  seal,  to  de- 
liver to  him  or  order  at  Z,  250  bar- 
rels of  flour,   not  less  than  one- 
third  of  which  to  pass  as  fine  quali- 
ty, the  remaining  two-thirds  of  su- 
perfine, to  be  at  said  place  by  the 
1st  of  March  then  next,  to  be  lined 
and  in  good  shipping  order;  for 
which  flour,   on  its  delivery  as  a- 
bove,  W  bound  himself  to  pay,  &c. 
In  an  action  of  covenant  on  this 
contract  the  breach  assigned  being 
that  the  flour  when  delivered   was 
sour,  common,  inferior,  and  of  bad 
quality,  and  not  in  good  shipping 
order,  and  would  not  and  did  not 
pass  inspection  as  fine  or  superfine 
flour — Held,  that  the  inspection  was 
no  part  of  the  contract,  as  it  re- 
lated to  the  time  and  place  of  de- 
livery, but  only  the  evidence  or 
test   by  which  it  was  agreed  the 
quality  of  the  flour  should  be  as- 
certained; that  the    moment    the 
stipulated  time  for  the  delivery  of 
the  ffour  had  passed,  the  contract 
was  either  performed  or  broken, 
and  it  was  only  necessary  to  carry 
the  flour  to  a  place  for  inspection, 
to  furnish  eyidenQe  of  its  quality; 


and  that  the  difference  of  price  at 
Z,  at  the  time  stipulated  for  its  de- 
livery, between  the  flour  delivered 
and  that  contracted  for,  was  the 
measure  of  the  plaintiff's  damages. 
Williamson  v  Dillon,  444 

4.  In  an  action  on  a  contract  to  de- 
liver a  specific  article  at  a  particu- 
lar time  and  place,  to  be  paid  for 
at  the  time   of  the  delivery,    the 
measure  of  damages  is  the  same, 
whether  the  action  be  brought  for 
a  nondelivery,  or  a  delivery  of  a 
different  quality  from    that    con- 
tracted for.     The  value  of  such  ar* 
tide  at  the  time  and  place  of  de- 
livery, is  the  true  measure;  unless 
where  the  contract  showed  it   was 
for  a  particular  purpose,  and  speci- 
al damages  were  laid  in  the  declara- 
tion. lb. 

5.  In  proving  the  relative  prices  of 
different  qualities  of  flour  at  Z,  in 
1817,  other  testimony  is  admissible 
than  direct  positive  proof  from  a 
witness  who  knew  the  value  at  that 
place.     In  the  absence  of  such  po- 
sitive proof  the  jury  may  infer  such 
value,  from  proof  of  the   price  of 
each  kind  of  flour  in  1817,  at  other 
places  in  the  neighbourliod  of  Z, 
and  at  N,  a  port  to  which  flour  was 
commonly  sent  from  Z,  for  inspec- 
tion and  sale;  and  this  latter  species 
of   evidence,   which  is  admissible 
for  the  above  purpose,  is  not  se- 
condary, though  of  a  less  conclusive 
character  than  direct  proof.        lb. 

6-  A  court  cannot  be  aided  in  the 
construction  of  an  agreement  by 
the  acts  which  the  parties  may  have 
done  under  it,  nor  is  a  party  bound 
by  any  construction  which  he  may 
have  put  upon  the  instrument. 
Ringgold  v  Minggold,  74 

7.  The  owners  of  merchandize  or 
other  property,  may  sue  in  their 
own  names  on  contracts  of  sale 
made  by  their  agents,  to  whom  ex- 
press promises  to  pay  have  been 
made,  and  with  whom  the  vendees 
dealt  as  sole  owners  of  the  proper- 
ty, having  no  knowledge  of  their 
principals.  So  also  where  one  part 
owner  sells,  as  his  own,  the  pro- 
perty of  his  firm,  all  the  partners 
may  sue.  Higdon,  et  ux.  t>  Thomas* 
15.7 

See  Agreement. 

Promissory  Note  1,  3. 

Statute  of  Frauds  1,  2,  3,  4, 

— —  Usage  2, 


INDEX. 


515 


CONVEYANCE. 

1.  A  receipt  for  the  purchase  money, 
in  a  deed  of  conveyance  of  land, 
is  only  prima  facie  evidence  of  its 
payment.      Higdon,  et  ux.  v   Tlio- 
m(m,  139 

2.  A  tract  of  land  may  acquire,  by 
reputation,  a  name  different  from 
that  which  it  bears  in  the  grant, 
and  may    pass    by  such  acquired 
name       Wall  v  Forbes,  441 

See  Consideration  1,  2,  3. 
— —    Delivery  1. 

CORPO1JATION. 

1.  It  is  a  general  .rule  of  evidence, 
that  in  a  suit  brought  by  an  inror- 
poraU  d  bunk,  one  who  is  a  stock- 
holder and  interested  in  the  event 
of  the  suit  is  not  a  competent  wit- 
ness in  behalf   of  the  institution: 
but  that  rule  is  not  without  excep- 
tion— as  where  an  interested  cor- 
porator is  called    upon  to  prove 
himself  either  to    be   or  to  have 
been  the  depositary  of  the  muni- 
ments of  his  corporation        Union 
Sank  of  Maryland  v  Ridgcly,  324 

2.  -  -      An    interested   corporator, 
however,  is  not  a  competent  wit- 
ness to  prove  that  a  hook  continued 
to  be  one  of  the  muniments  of  his 
corporation  after  he  had  ceased  to 
be  the  depositary  thereof.  Ib. 

3.  The   adoption  of  a   code   of  by- 
laws by  i  corporation  need  not  ne- 
cessarily be  by  writing,  but  may  be 
proved  as  well  by  t/ie  acts  and  uni- 
form course  of  proceedings  of  such 
corporation,  as  by  an  entry  or  me- 
morandum in  writing.  Ib. 

4.  Where  the  plaintiffs  in  their  re- 
plication set  out  a  code  of  by-laws 
i>f  their  corporation,   which    pre- 
scribe the  duties  of  an  officer  of 
the  corporation,  and   then  assigns 
as  a  breach  a  violation  of  duties  so 
prescribed,  on  which  breach  issue 
is  tendered  by  the  defendant  and 
joined  in    by   the  plaintiffs,    such 
by-laws  «re  virtually  admitted  by 
the    defendant    in    his   pleadings. 

Jb. 

5.  Whfre  the  defendant  pleaded  that 
he  signed  tin-  supposed  writing  ob- 
liga'ory,  upon    which    the    action 
•was  brought,  at  the  request  of  the 
principal  obligor  therein,  and   as 
his  surety,  and  returned  the  same 
to  him  to  be  by  him  submitted  to 
the  obligees   (a  corporation,)  for 
their  approbation  and  acceptance; 
and  if  it  should  be  approved  and 


accepted  by  them,  then  it  was  to 
be  considered  and  delivered  as  the 
act  and  deed  of  the  defendant; 
and  that  it  never  was  approved  by 
the  said  obligees  by  any  act  in 
their  corporate  capacity,  and  so  it 
was  not  his  deed — Held,  that  in  the 
absence  of  all  evidence  on  the  part 
of  the  defendant,  the  possession 
and  production  of  the  instrument 
of  writing  by  the  obligees  was  suf- 
ficient prima  facie  evidence  of  the 
delivery  and  acceptance,  to  entitle 
them  to  a  verdict,  on  the  issue 
joined  on  such  plea.  Ib. 

6.  It  seems  to  have  been  formerly 
held,  that  a  corporation  aggregate 
could  only  act  by  its  common  seal; 
could  do  nothing  without  deed} 
but  that  doctrine  is  no  where  sanc- 
tioned as  a  universal  proposition. 

Ib. 

7*  The  acts  of  corporations  may  now 
be  evidenced  by  writing  without 
seal.  Jb. 

8.  The  assent  and   acts  of  corpora- 
tions,  like  those  of  individuals,  not 
reduced  to  writing,  may  be  infer- 
red from  other  facts  and  circum- 
stances, without  a  violation  of  any 
known  rule  of  evidence.  Ib. 

9.  A  corporation  may  be  bound  by 
the  acts  of  its  duly  authorised  a- 
gent,  although   such  acts  are  not 
reduced  to  writing.  Ib. 

10.  Where  the  charter  of  a  bank  re- 
quired its  cashier  to   give    bond, 
with   two  or  more  sureties,  to  the 
satisfaction  of    the   president  and 
directors,  and  a  bond,  executed  by 
the  cashier,  and  others,  as  his  sure- 
ties,  reciting  his  appointment  as 
cashier,  wus  found  deposited  among 
the  archives. nnd  valuable  original 
papers  and  documents  of  the  bank, 
in  an  iron  chest  in    the    banking 
house  of  the  corporation,  and  the 
cashier  had   continued   to    act   in 
that  capacity  for  several  years  after 
the  date  of  the  bond,  without  any 
reappointment.      In  an  action  oa 
the    bond  by    the    corporation — 
Held,  that  in  the  absence  of  all  tes- 
timony  respecting  the   execution 
of  the  bond,  the  jury  ought  to  be 
permitted  to  infer  that  it  was  duly 
executed  and  delivered  by  the  de- 
fendant and  accepted  by  Ihe  plain- 
tifl's,  which  acceptance  necessarily 
included   the  approbation  of    the 
board   of  directors,   or  thrir  satis- 
faction with  the  sureties,    and  wa<i 
not  necessary  to  be  in  writing.   V>,. 


516 


INDEX. 


Jl.  Where  the  pleadings  in  a  cause 
put  in  issue  the  facts  that  certain 
false  and  deceptions  entries  were 
made  in  the  books  of  a  banking 
corporation  by  its  clerks,  with  the 
connivance  of  the  cashier,  on  proof 
that  the  books  were  kept  by  the 
clerks  of  the  bank,  and  the  entries 
were  in  their  handwriting,  the 
books  are  evidence  to  show  what 
entries  were  in  them,  which  can 
only  be  done  by  their  production, 
and  are  proper  to  lay  a  foundation 
for  other  testimony  to  show  fraud, 
malconduct,  neglect,  or  violation 
of  duty  by  the  cashier.  Ib. 

12.  Where  by  the  charter  of  a  bank 
the  directors  were  to  be  chosen  an- 
nually, and  they  "for  the  time  be- 
ing, have  power  to  appoint  a   ca- 
shier, and  such  other  officers  under 
them,  as  may  be  necessary  for  ex- 
ecuting the  business  of  said   cor- 
poration," a  cashier  so  appointed 
is  an  officer  of  the  corporation,  the 
duration  of   whose  office,  in  the 
absence  of  an  express  limitatoin, 
s  limited  only  by  the  duration  of 
ihe  charter,  subject  to  the  removal 
tof  the  incumbent  by  the  directors 
as  occasion  might  require;  and  is 
not  necessarily  an  annual  officer. 

Ib. 

13.  Where  an  act  of  incorporation, 
under  which  a  bond  was  taken  to 
secure  the  good  conduct  of  one  of 
the  officers  of  the  corporation,  was 
limited  in  its  duration  to  a  certain 
period,   the  bond  must  have  the 
same  limitation;  because  the  par- 
ties looking  to  that  act,  it  would 
seem  to  be  very  clear  that  no  re- 
sponsibility was  contemplated  be- 
yond the   period   of  its   specified 
existence.     The  extension  of  the 
charter  beyond  the   period   of  its 
first  limitation    by  legislative   au- 
thority, does  not  enter  into  the  con- 
tract and  cannot  enlarge  it.        Ib, 

COSTS. 

1.  Where   the    chancellor's  decree 
was  entirely   reformed  in  the  ap- 
pellate court,  each  party  was  de- 
creed, in  a  case  of  cross  apoeals, 
to  pay  his  own  costs  in  that  court. 
S.  &  T.  Ringgold  v  M.  Ringgold, 
etal.  11 

2.  The    court  of  appeals    will  not 
grant  a  rule  on  an  appellant  who 
has  removed  out  of  the  state  since 
the  appeal,  to  give  security  for  the 
costs  of  suit.  Berry  v  Griffith,  440 


COURT. 

I,  A  court  cannot  be  aided  in  the 
construction  of  any  agreement  by 
the  acts  which  the  parties  may 
have  done  under  it,  nor  is  a  party 
bound  by  any  construction  which, 
he  may  have  put  upon  the  instru* 
ment.  Ringgold  v  Ringgold,  74 

Sec  Law  &.  Facts. 

COURT  OF  APPEALS. 

1.  Where  the  decree  of  the  court  of 
chancery  was  entirely  reformed  in 
the  court  of  appeals,   each  party 
was  decreed,  in  a  case  of  cross  ap- 
peals, to  pay  his  own  costs  in  that 
court.      6'.  &f  T.  Minggold  v  M. 
Minggold,  et  al.  1 1 

2.  The  auditor's  report  may  be  ex- 
cepted  to  in  the  court  of  appeals, 
and  the  whole  accounts  gone  into, 
whether  general  or  special  excep- 
tions,  or  no  exceptions  had  been 
taken  in  the  court  of  chancery.  Ib. 

67 

3.  Where  the  appellate  court  had  re- 
versed a  judgment  and  awarded  a 
procedendo,  and  it  afterwards,  dur- 
ing the  same  term,  appeared  that 
there  was  a  material  mistake  in  the 
record  upon    which  they    acted, 
they  struck  out  the  judgment,  &c. 
and  ordered  a  writ  of  diminution. 
Raborg  v  Sank  of  Columbia,     239 

4.  The   court    of    appeals    will   not 
grant  a  rule  on  an  appellant  who 
has  removed  out  of  the  state  since 
the  appeal,  to  give  security  for  the 
costs  of  suit.  Berry  v  Griffith,  440 

See  Appeal. 

COURT  OF  CHANCERY. 

1,  As   to    the  power,  authority,  re- 
sponsibility, &c.    of   conventional 
trustees— See  TRUST  &  TRUSTEES 
1  to  16,  and   S  &  T.  Ringgold  v 
M.  Ringgold,  et  al.  11 

2.  A  court  of  equity  must  always  de- 
cree upon  the    allegations  in  the 
bill  of  the  complainant,  and  it  is 
not  justified  in  going  beyond  them. 
As  where  he  relies  upon  trusts  in 
certain  deeds,  and  complains  of  a 
violation  of   those   alone,   though 
the  facts  admitted  by  the  defen- 
dants   disclose    the    existence   of 
other  trusts,  for  which  they  are  re- 
sponsible to  the  complainant/  yet 
that  court  cannot  decree  for  such 
other  rights — they  must  be  reserv- 
ed for    future  consideration.      In 
order,  however,  to  do  justice  be- 
tween the  parties,  where  the  trus- 


INDEX. 


517 


tees  were  bound  to  collect  money 
and  pay  debts,  the  court  will  infer, 
in  the  absence  of  express  proof, 
that  the  debts  paid  by  them,  after 
the  receipt  of  money  from  the 
trusts  not  charged  in  the  bill, 
were  in  fact  paid  out  of  such  re- 
ceipts. Ib. 
3-  It  is  a  general  rule,  that  an  answer 
responsive  to  the  bill  of  complaint, 
is  evidence  for  the  respondent;  but 
the  answer  of  a  defendant,  when  it 
asserts  a  right  affirmatively,  in  op- 
position to  the  plaintiff's  demand, 
is  not  evidence.  Ib. 

4.  An  answer  will  not  support  a  mat- 
ter  set   up   in  avoidance   or   dis- 
charge, where  the  matter  of  avoid- 
ance is  a  distinct  fact;  in  such  a 
case,  the  defence  must  be  proved. 

Ib. 

5.  On  a  general  bill  to  account,  the 
answer  is  no  evidence  of  disburse- 
ments; such  a  bill  is  nothing  more 
than  a  demand  on  the  defendant, 
to  show  his  receipts,  and  the  legal 
sufficiency  of  his  expenditures.  Ib. 

6.  In  all  cases,  where  a  complainant 
seeks  a  discovery  and  relief,  and  to 
make  out  his  case,  applies  himself 
to  the  conscience  of  the  defendant, 
if   in  his   answer  the   liability    is 
once  admitted,  there  can  be  no  es- 
cape from  it,  but  by  proof;  though 
every  thing  which  he  says  with  re- 
gard to  the  creation  of  that  liabili- 
ty, must  be  taken  together.       Ib. 

7.  By  an  equitable    construction  of, 
and  by  analogy  to  the  statutes  of 
this  state,  allowing  commissions  to 
executors,  guardians,  and  trustees, 
under  judicial  sales,  commissions 
ipay  be   allowed  to    conventional 
trustees,  although   there    was    no 
agreement  between  the  parties  to 
that  effect.  Ib. 

8.  JLandi.  devised  to  be  sold  are  there- 
by turued  into  money,  and  con- 
sidered in  equity  as  personal  estate. 
A  wife  being  entitled  to  the   pro- 
ceeds of  such  lands,  dying  after  a 
sale  of  them,  her  husband   surviv- 
ing, is  entiiled    to  the    proceeds 
thereof.     Hurlt  v  Fisher,  88 

•0.  C  &.  T  drew  a  bill  in  favour  of  M, 
on  U  &.  B,  partners  in  trade,  which 
they  accepted.  M  sued  D  &.  B  at 
law  on  their  acceptance,  and  pend- 
ing the  suit,  D  died.  Judgment 
being  had  against  B,  he  being  in- 
solvent obtained  a  discharge  under 
the  insolvent  laws.  P  administer- 
ed on  D's  estate,  and  received  as- 


sets from  his  separate  property  to 
a  large  amount,  though  insufficient 
to  pay  D's  individual  debts,  and 
also  received  some  of  the  partner- 
ship funds  'I  he  judgment  not 
being  paid,  snd  the  partnership 
funds  being  insufficient  to  p.i\  its 
debts,  M  filed  a  hill  in  equity  a- 
gainst  D's  administrator,  claiming 
to  be  paid  out  of  the  separate  us- 
sets,  au  equal  proportion  with  D's 
separate  creditors — I/eld,  that  he 
wasnot  entitled  to  recover.  M'Cul- 
loh  v  Dashiell'a  Jldm'r.  96 

10.  Joint  creditors,   in  equity,    r:.n 
only  look  to  the  surplus  of  the  se- 
parate estate,  afterpayment  of  the 
separate  debts.  Ib. 

11.  Separate  creditors,  in  equity,  can 
only  seek  indemnity  from  the  sur- 
plus of  the  joint   fund,  after  the 
satisfaction  of  the  joint  creditors. 

Jb. 

12.  Where  the  claims  of  joint  credi- 
tors do  not  corne  into  conflict  with 
those  of  the  separate  creditors,  but 
only  with  the  interests  of  the  re- 
presentatives of  the  deceased  part- 
ner, equity    will  decree  to  joint 
creditors   a     satisfaction     ot'    their 
claims,    by    considering   them,     as 
they   are  considered  at  law,    both 
joint  and  several.  lb~ 

13.  At  law   the  joint   creditors  may 
pursue  both  the  joint  and  separate 
estate  to  the  extent   of  each,  for 
the  satisfaction   of  their  joint  de- 
mands,  without  restriction  from  a 
court  of  equity;  yet  when  by  the 
death  of  one  of  the  parties,  the  le- 
gal right  survives  against  the  sur- 
viving partner,  and  is  extinguished 
against  the  deceased  partner,  that 
court  will  give  to  the  separate  credi- 
tors all  the  advantages  thus  by  ac- 
cident thrown  upon  them.          Jb. 

14.  The  assets  of  insolvents  are  dis- 
tributable according  to  equity.  Ib. 

15.  Since  the  act  of  1786,  ch.  45,  (to 
direct  descents,)  estates  tail  gene- 
ral, created  since  its  passage,   are 
converted  into  estates  in  fee  sim- 
ple, and  are  subject  to  be  sold  for 
the  payment  of  debts,  in  the  same 
manner  as  are  estr.tes  in  fte.  New- 
ton, ft  al.  v  GHJj'fk,  et  al.          Ill 

16.  Whoever  enters  upon  the  estate 
of  an  infant,  is  considered  in  equi- 
ty as  entering  as  his  guardian;  and 
after  the  infant  comes  of  age,  he 
may  by  bill  in  chancery  recover  the 
rents  and  profits.     If  a  person  so 
entering  shall  continue  the  posses- 


.518 


INDEX. 


sion  after  the  infant  comes  of  age, 
chancery  will  decree  an  account 
against  him  as  guardian,  and  carry 
on  such  account  after  the  infancy  is 
determined.  Drury  v  Conner,  220 
37.  One  who  never  occupied  an  es- 
tate, nor  derived  any  advantage 
from  it,  but  merely  rented  it  out, 
and  collected  and  paid  over  the 
rent  as  it  came  into  his  hands,  as  a 
friend  or  connexion  of  another,  for 
whose  use  he  received  the  rent, 
and  to  whom  he  was  bound  to  pay 
it  over  as  agent,  is  not  responsible 
in  equity,  for  mcsne  profits,  to  the 
owner  of  such  estate.  Ib. 

18.  It  is  true,   as  a  general  position, 
that  chancery  will  not  entertain  a 
bill,  where  there  is  a  full  and  com- 
plete remedy  at  law,  and  no  ground 
is  shown  for  going  into  equity;  and 
ordinarily  a  bill  for  mesne  profits, 
after  recovery  in  ejectment,  show- 
Ing  no  obstacle  at  law,  and  stating 
no  ground  of  equitable  relief,  would 
on  plea  or  demurrer,  and  perhaps 
at  the  final  hearing  without  either, 
under  the  practice  in  this  state,  be 
dismissed,  the*e  being  an  adequate 
remedy  at  law.  Ib. 

19.  The  auditor's  report  may  be  ex- 
cepted  to  in  the  appellate   court, 
and  the  whole  accounts  gone  into, 
\rhether  general  or  special,  or  no 
exceptions  had  been  taken  to  it.  in 
the  court  of  chancery  -  Per  Bu- 
chanan, Ch.  J.     S.&T.  Ilinggold 
v  M.  ttinggold,  et  al  67 

20-  In  equity  money  directed  to  be 
laid  out  in  land,  will  before  invest- 
ment, be  considered  as  land;  and 
land  directed  to  be  sold  and  con- 
verted into  money,  will,  before  a 
sale,  be  considered  as  money,  and 
pass  as  such.  Leadenham's  Ex'r. 
v  Nicholson,  et  al.  267 

il.  On  an  appeal  from  chancery,  the 
appellate  court  decrees  only  in  re- 
lation to  the  rights  of  those  who 
are  parties  to  the  appeal.  Ib. 

22.  The  lands  of  which  G  F  died 
seized,  on  the  application  of  his 
lieirs  and  representatives,  were 
sold  under  an  order  of  the  court 
of  chancery,  by  a  trustee  appoint- 
ed for  that  purpose,  to  J  &  C  B, 
and  the  sale  was  ratified.  The 
purchasers,  being  creditors  of  J  F, 
one  of  the  heirs,  filed  a  petition 
setting  forth  their  claim,  the  death 
of  J  f ,  that  his  children,  who  were 
minors,  resided  out  of  the  state, 
and  praying  an  order  of  publica- 


tion against  them,  and  payment  of 
the  debt  due  to  them.  The  peti- 
tion did  not  state  that  the  person- 
al estate  of  J  F  was  insufficient  to 
pay  his  debts.  The  chancellor, 
without  granting  an  order  of  pub- 
lication, dismissed  the  petition.  On 
appeal,  it  was  held,  that  creditors 
may,  by  way  of  petition,  instead  of 
pursuing  the  accustomed  course  of 
an  original  bill,  affect  funds  under 
the  control  of  the  court  of  chan- 
cery upon  the  same  terms  that  they 
might  by  bill;  and  that  noth with- 
standing the  defect  in  the  petition 
in  this  case,  the  chancellor  erred 
in  deciding  the  merits  of  the  peti- 
tion without  publication,  or  with- 
out an  answer,  and  without  selling 
it  down  for  hearing;  as  the  right 
existed,  the  petition  might  have 
been  amended,  and  the  defect 
cured,  if  the  proceedings  had  pro- 
ceeded to  a  hearing.  And  to  ena- 
ble the  petitioners  to  subject  the 
funds  in  question  to  the  payment 
of  debts,  they  must  show,  either 
that  no  personal  fund  existed  ap- 
plicable to  the  extinguishment  of 

•  their  claim,  or  that  they  are  insuf- 
ficient for  that  purpose;  and  must, 
in  addition,  establish  their  claim  in 
the  customary  method.  J.  W  C. 
^Baltzell  v  Fuss,  et  al  504 

23.  The  acts  of  assembly  of  1785,  ch. 
72,  and  1794,  ch.  60,  s.  2,  are  in 
part  maferia,  and  where  proceed- 
ings are  had  under  the  one  law  or 
the  other,  to  sell  real  property  for 
the  payment  of  debts,  evidence  of 
an  insufficiency  of  assets  will  be 
required.  76. 

See  Husband  &  Wife  6,  7. 

Trust  &  Trustees  17,  18,  19. 

COVENANT. 

See  Warrant  &.  Hesurvey. 

CREDITOR. 

See  Joint  &.  Separate  Creditors. 

CUSTOM. 

See  Promissory  Note  1. 
—  Usage. 


DAMAGES. 

See  Contract  3,  4,  5. 


DATE. 


See  Delivery  1. 


INDEX. 


519 


DAY. 

See  Pleading'  18,  iy. 
Trespass  1. 

DAYS  OF  GRACE. 

See  Promissory  Note  1,  o. 

DEBTOR  8c  CREDITOR. 

See  Assu.mpsit. 
—     Attachment. 

Descents  1,  2,.3. 

Joint  &.  Separate  Creditors.* 

DECLARATION. 

1.  After  verdict  in   an  action  of  as- 
numpsit  by  an  administrator,   a  de- 
fective allegation   in   the   declara- 
tion of  the  promise  to  the  admini- 
strator, and  the  death  of  the  intes- 
tate, and  an  omission  to  make  pro- 
fert  of  the  letters  of  administration, 
cannot   be    taken     advantage   of; 
though  they  might  have  furnished 
good  causes  of  demurrer.     Vander- 
sutitft  v  Washmehi's  Jldm'r  4 

2.  In  an  action  of  ussumpsif,  brought 
by  husband  and  wife,    the  declara- 
tion counted  upon  a  contract  for 
the  sale  of  the  wife's  land  recited 
in   the  bond  for  the    conveyance 
of  the  land.     It  averred  that  the 
defendant    was   put   in   possession 
of  the  land  on  the  day   of  making 
the  contract,   and  afterwards    ac- 
cepted from  the  plaintiff*  a  suffi- 
cient deed,  conveying  to  him  the 
land  in  fee  simple.     It  then  assign- 
ed as  a  breach  the  nonpayment  of 
the  four  last   instalments  mention- 
ed in  the  contract,  and  concluded 
to  the  damage  of  the  plaintiffs,  8ic. 
Higdon,  et  ux.  v  Thomas,  159 

3.  A  declaration  in  ussumpait,  which 
contains  a  count  for  matters  and 
articles  properly  chargeable  in  ac- 
count, as  appears  by  a  particular 
account   filed — no   account  being 
filed?  and  another  count  for  special 
services,  which  did  not  state  an  as- 
sumption  of  any   particular  sum, 
will  not  authorise  a  recovery.  J.  & 
P    Turner  n  Jenkins,  et  al.         161 

4.  Where  a  declaration  sets  forth   a 
claim  or  demand  of  the  plaintiff 
against  the  intesUte  of  the  defen- 
dant, and  the  intestate's  promise  to 
pay  it — a  reference  of  such    de- 
mand by  his  administrator,  (the  de- 
fendant,) and  the  plaintiff,  to  arbi- 
trators— an  award,  in  pursuance  of 
such  reference,  for  a  specific  sum 
in  favour  of  the  plaintiff — a  pro- 
mise by  the  defendant,  as  admini- 


strator, to  pay  it,  and  charges  a 
breach  in  the  nonpayment  of  that 
sum,  it  contains  matter  enough,  in, 
an  action  against  the  defendant  in 
his  own  rij<ht,  to  warrant  a  judg- 
ment against  him  in  his  character 
of  administrator.  The  plaintiff  is 
under  no  necessity  to  aver  arvse's  in 
the  hands  of  the  defendant,  as  ad- 
ministrator, sufficient  to  pay  his 
debt.  Giles  Jldm'r.  of  Bacon  v  Fer- 
ryman, 164 

5.  This  peculiar  mode   of  de- 
claring originated  in  :t  plan  to  *ave 
the  atl  of  limitations,  and  proceeds 
upon  the   ground,   that  it  neither 
pledges  the  personal  responsibility 
of  the  administrator  after   verdict, 
nor  deprives  him  of  any  defence  he 
could   have  had,  if  he    had   been 
charged  with   an  assumpsit  by  his 
intestate;  and  with  these  qnalifica- 
tions,  it  will  be  received  and  adopt- 
ed. Ib. 

6.  By  the  statutes  of  21  Jac.  I.  cli.  13; 
5  Geo.  I  c/i    13,  and  the  act  of  as- 
sembly of  1809,  ch.  153,  a  variance 
between  the  writ  and  declaration 
is  cured  after  verdict.  Ib. 

7.  No  form  of  words  is  necessary  to 
be  used    in   an   averment   in  a  de- 
claration that  the  defendant  is  ad- 
ministrator; if  enough  is  said    to 
amount   to  an  allegation,  that  the 
defendant    administered     on     the> 
estate  of  the  deceased,  it  will  suf- 
fice. Ib. 

8.  A  declaration  vicious  on  account 
of  an  averment  obscurely  made,  is 
not  such  a  fatal  objection  us  will 
reverse  a  judgment.  Ib. 

9.  The  declaration  in  replevin  should 
not  include  any  property  not  taken 
under  the  writ  of  replevin.     San- 
derson's Ex'rs.  v  Marks,  252 

See  Contract  4. 

Promissory  Note  2. 

DECLARATIONS. 

See  Evidence  10,  22,  23,  24,  25. 
Limitation  of  Action. 

DEED. 

See  Bargain  and  Sale. 

Conveyance. 

Delivery  1. 

DELIVERY. 

1.  Asa  general  principle  of  lawr,  de- 
livery is  essential  to  the  legal  ex- 
istence and  validity  of  a  deed;  but 
our  legislative  enactment  declares 
a  deed,  recorded  within  the  time 


520 


INDEX, 


prescribed  by  law,  to  be  efficient 
and  operative  from  the  time  of  its 
date.  Betty,  et  ux.  v  The  Uiiion 
Sank  of  Maryland,  175 

See  Escrow. 

Gift  1. 

DEMAND. 

1.  An  instrument  of  writing'  for  the 
payment  of  money  on  demand,  cre- 
ates a  cause  of  action  from  its  date, 
bearing  interest,  and  against  which 
the  act  of  limitations  begins  to  run 
from  that  time.  Darnall'a  Ex'rs. 
v  Magruder,  439 

DEMURRER. 

See  Declaration  1. 

DEPOSIT. 

See  Assumpsit  2. 

DESCENT?. 

1.  Before  the  act  of  1786,  ch.  45,  (to 
direct  descents,)  a  devise  of  land 
by  A  to^iis  son  J,  and  his  heirs,  and 
othc-Handtohisson  G.and  his  heirs; 
and  in  case  either  of  them  "sfiou/d 
rtecfcfc,   havins;  no  lawful  issue,  or 
heirs  of  his  body"  then  the  surviv- 
ing son  "to  have  his  deceased  bro- 
ri.i  r's  part  of  the  land,"  to  him  and 
his  heirs;   and   in   case  both    sons 
tlsh(nt!d  decease,  leaving  no  lawful 
fit'rx  of  ihe'r  bodies,"  then  all  the 
aforesai;)   lands  unto  the  testator's 
three   daughters,  S,  S  &  N,  to  be 
equally    divided    between    them, 
would  have  vested  in  J  and  G  each, 
estates  tail    general,  in  the  lands 
respectively  devised  to  them,  with 
cross  remainders  in  tail  general,  re- 
fnaincler  to  S,  S  &.  N,  for  life.    But 
b3r    the    operation    of   that     act, 
the  devise   being  made  in  1792,  J 
and  G  took  virtually  estates  in  fee 
in  the  lands  devised  to  them  re- 
spectively; and  on  the  death  of  G, 
•without  issue  and  intestate,  J,  and 
S,  S  £.  N,  surviving  him,  J  took  by 
descent  from    him,    one-fourth   of 
his  estate;  and  J  also  dying  with- 
out issue,   and  intestate,  that  one- 
fourth,  with   the  whole  of  the  es- 
tate devised  to  him   by  his  father, 
descended  to  his  three  sisters,  S, 
S  &  N,  as  his  heirs  at  Hw.     New- 
ton, et  al.  v  Griffith,  et  al.          Ill 

2.  On  a  bill  filed  against  S,  S  8c 

N,  as  heirs  at  law  of  J — Held,  that 
the  land  thus  descended  from  J, 
was  subject  to  be  sold  for  the  pay- 
ment of  his  debts.  /6. 


3.  Before  the  act  of  1786,  ch.  45,  es^ 
tates  tail  were  not  liable  for  debte 
contracted   by  tenants  in  tail;  but 
by  tltat  act,  ^states    tail  general, 
created  since  its  passage,  were  vir- 
tually abolished,  and  converted  in- 
to estates  in  fee  simple,  and  have 
now  all  the  incidents  of  lands  held 
in  fee — they  are  descendible,  trans- 
ferrable  and  devisable,  and  subject 
to  be  sold  for  the  payment  of  debts, 
as  estates  in  fee.  I'l. 

4.  Estates  tail  general,  divided,  un* 
der  the  act  of  1786,  ch  45,  among 
heirs,  taken  by  election,  or  s»ld  by 
the  commissioners^  are  held  in  fee 
simple.  Ib. 

5.  By  the  act  of  3786,  c/*.45,  lands 
held  in  fee  simple,  and  fee  tail  ge- 
neral created  since  its  commence- 
ment, descend  first  to  the  child  or 
children  of  the  intestate,  and  their 
descendants,  if  any;  and  if  no  chil- 
dren or  descendants,  to  collaterals 
indefinitely.  Ib. 

6.  The  legislature  having  a  ris»ht  to 
prohibit  the 'creation  of  estates  taif, 
must  have  a  right  to  direct  in  what 
manner  lands  so   held   by   subse- 
quent creation,  should  descend.  Ib. 

7.  A  dying  intestate  means  a  dying 
without  making  a  valid  and  opera- 
tive disposition  by  will.  Jo. 

8.  Estates  tail    general,  created  be- 
fore the  act  of  1786,   and    estate* 
tail  special,  are  excepted  from  the 
operation  of  that  act.  2&- 

See  Husband  and  Wife  4. 

DESCRIPTION. 

See  Ejectment  3,  4. 
Fieri  Facias  1. 

DEVISE. 

1.  The  proceeds  of  lands' devised  ttf 
be  sold  are  turned  into  money,  and 
considered  in  equity  as  personal  es- 
tate.    Hurtt  v  Fisher,  88 

2.  Before  the  act  of  1786,  ch.  45,  (to 
direct  descents,)  a  devise  of  land 
by  A  to  his  son  J,  and  his  heirs,  and 
other  land  to   his  son  G,  and   his 
heirs;  and  in  case  either  of  them 
• 'should  decease,  having  no  lawful 
issue  or  heirs  of  his  bodt/,  then  the 
surviving  son  to  have  his  deceased 
brother's  part  of  the  land,"  to  him 
and  his  heirs;  and  in  case  both  sons 
"should  decease  leaving  no  lawful 
heirs  of  their  bodies,"  then  all  the 
aforesaid  lands  unto  the  testator's 
three  daughters,  S,  S  &  N,  to  be 
equally    divided    between  them, 


INDEX. 


Would  have  vested  in  J  and  G  each, 
estates  tail  general  in  the  lands  re- 
spectively devised  to  them,  with 
cross  remainders  in  tail  general, 
remainder  to  S,  S  &  N,  for  life. 
Hut  by  the  operation  of  that  act, 
the  devise  being  made  in  1792,  J 
and  G  took  virtually  estates  in  fee 
in  the  lands  devised  to  them  re- 
spectively; and  on  the*  death  of  G, 
without  issue  ami  intestate,  J,  and 
S,  S  and  N,  surviving  him,  J  took 
by  descent  from  him  one-fourth  of 
his  estate;  and  J  also  dying1  with- 
out issue  and  intestate,  that  one- 
fourth,  with  the  whole  of  the  es- 
tate devised  to  him  by  his  father, 
f  descended  to  1m  three  sisters  S,  S 
and  N,  as  his  heirs  at  law.  Hew- 
fon,  ct  al.  v  Griffith,  et  al.  Ill 

3.  The  words  "without  issue"  in  a 
will,  when  applied  to  dispositions 
of  real  estate,  ex  vi  termini,  mean 
an  indefinite   failure    of  issue,    if 
there  be  nothing  in  the  will  re- 
stricting it  to  a  failure  at  the  time 
of  the  death  of  the  first  devisee, 
or  to  some  other  time  or  event.  Ib. 

4.  To  have  no  issue — to  die  having 
no  i«sue — and  to  die  without  issue, 
are  technically  and  judicially  con- 
vertible terms  Ib. 

5.  The    words  leaving,  having,  and 
without,  in  devises — as  "if  he  shall 
die  without  leaving  any  issue"-.- 
"without  having  issue,"  or  "with- 
out issue,"  have  acquired  a  tech- 
nical judicial  sense,  and  when  ap- 
plied to  real    estate,  mean  an  irt- 
definite  failure' of  issue.  Ib. 

6.  In   dispositions   of  personal  pra- 
perty,  the  courts  generally  incline 
to  the  construing  a  limitation  after 
a  dying  without  issue,  to  mean  a 
dying  without  issue  at  the  death  of 
the  first  legatee,  in  orc'er  to  sup- 
port, if  they   can,  the    limitation 
over;  yet  in  relation  to  real  estate, 
the  construction  is  generally  other- 
wise. Ib. 

7.  The  circumstance  of  a  limitation 
over,  being  to  a  survivor,  and  his 
heirs,  or  only  of  a  life  estate,  to  a 
person  in  essc,  has  not  the  effect, 
in  dispositions  of  real  estate,  in  ei- 
ther case,  to  restrict  the  establish- 
ed legal   meaning  of  the   words 
••leaving  no  lawful  heirs  of  their 
bodies,"  to  a  failure  at  the  death  of 
the  first  later,  or  survivor.         Ib' 

S.  If  there  be  a  devise  to  one  gene- 
rally of  freehold  and  personal  es- 
tates without  any  words  of  limita- 

TOL.  I.  6G 


tion,  he  will  take  an  estate  for  life 
only,  in  the  freehold,  but  the  per- 
sonal estate  absolutely.  Ib. 

9.  Since  the  act  of  1786,  ch  45,  es- 
tates tail  general,  created  since  its 
passage,  are  devisable  in  the  same 
manner  as  estates  in  fee  simple  Ib. 

10.  Neither  a  devise  of  land,  nor  a 
legacy  of  a  less  amount   than  the 
sum  due  to  the  devisee  or  legatee, 
is  considered  in  law  a  satisfaction 
of  a   pecuniary   debt.       Owings's 
Ex'rs.  v  Owings,  484 

DIUECT1ON  OF  THE  COURT. 
See  Law  and  Facts. 

DISMISSAL; 

See  Appeal  4. 

DISTRIBUTEE  &  DIStRlBtf- 
TIOX. 

1.  An  intestate  had  several  brothers 
and  sisters,  who  died  before  him, 
leaving    children    and    grandchil- 
dren; and  one  brother  who  surviv- 
ed him,  but  who  died  before  distri- 
bution was  made  of  the  intestate's 
estate.     In  the  distribution  of  the 
intestate's  personal  estate,  it  was 
decreed,  that  the  children  of  his 
sister,  and  the  children  of  each  of 
his  brothers,  who  died  before  him, 
should  receive  the  share  to  which 
such  sister  or  brother,  if  she  or  he 
had  survived  the  intestate,  would 
have  been  entitled,  and  to  the  exclu- 
sion of  any  grandchildren  of  such 
sister  or  brother  of  the  intestate — 
such  graridchildren  being  the  chil- 
dren of  a  son  or  daughter  of  the 
said  sister  or  brother  of  the  intes- 
tate, who  died  before  him.     And 
that  the  share  of  the  brother  who 
survived  the  inlestato,  is  payable 
to  the  executor  or  administrator  of 
such   brother.      Duvall,   et  ux.  v 
Harwood's  Miners,  474 

2.  An  intestate  died  without  descen- 
dants— a   sister,  and  the  children 
and  grandchildren  of  several  de- 
ceased brothers  and  sisters  surviv- 
ing him.   Of  one  of  the  brothers  no 
child  was  alive  at  the  death  of.  the 
intestate,  but  several  of  the  grand- 
children of  that  brother  were  then 
living,   the   plaintiff  being   one — . 
Held,  that  he  was  not  entitled  to 
any  part  of  the  intestate's  personal 
estate.  Ib.  476,  (nott.) 

See  Insolvent  Debtor  1- 

Joint  and  Separate  Creditors. 


INDEX, 


DOWER. 

See  Alien  1. 

— -  Feme  Covert  1,  2. 


EJECTMENT. 

1.  The  lessor   of  the  plaintiff  in  e- 
jectment  died  pending  the  action^ 
and  his  heirs  at  law  were  made  par- 
ties in  his  place,  without  objection, 
and  the   cause   continued   several 
terms,  and  the  plots  amended — 
Held,  that  it  was  not  competent  for 
the  defendant  to  defeat  the  action, 
by  giving  evidence  that  one  of  the 
heirs  was  an  infant  when  she  was 
made  a  party;  and,  that  evidence 
that  she  was  an  infant  at  the  time 
of  the  trial,  would  not  entitle  the 
^defendant  to  a  verdict  against  the 
other  heirs  who  were  of  full  age. 
James,  et  al.  Lessee,  v  Boyd,         1 

J2.  In  an  action  of  ejectment,  the 
plaintiff  obtained  judgment  against 
the  casual  ejector,  and  possession  by 
writ,  under  that  judgment.  At  the 
second  term  thereafter,  the  land- 
lord of  one  of  the  tenants  in  pos- 
session, moved  the  court  to  set  a- 
side  the  judgment,  &c.  A  rule 
was  granted  for  the  plaintiff  to 
show  cause,  &.c.  At  the  next  term 
the  court  set  aside  the  judgment, 
awarded  restitution  as  prayed,  per- 
mitted the  landlord  to  appear,  or- 
dered the  action  to  be  reinstated  on 
the  docket,  and  regular  continu- 
ances to  be  entered  therein.  At 
this  stage  of  the  proceedings,  the 
plaintiff  moved  the  court  for  a  re- 
consideration, and  to  set  aside  the 
order  for  restitution,  as  unduly  ob- 
tained. This  being  refused,  the 
plaintiff  appealed — Held,  that  the 
setting  aside  a  judgment  against  a 
casual  ejector,  on  motion  of  the  land- 
lord of  the  tenant  in  possession,  a- 
warding  restitution  of  the  premis- 
es, and  ordering  the  action  to  be 
tried,  is  but  an  interlocutory  pro- 
ceeding, from  which  an  appeal  will 
not  lie;  and  the  refusal  of  the  coun- 
ty court  to  reconsider  such  pro- 
ceedings, does  not  alter  the  case. 
Gover,  et  al  Lessee,  v  Cooky,  7 

2.  There  must  be  such  a  description 
of  the  land  claimed  in  an  action  of 
ejectment,  as  will  enable  the  sheriff 
to  deliver  possession  after  judg- 
ment.    Fenwick  v  Floyd's  Lessee, 

172 

&<  A  declaration  in  ^jectment  claiaK 


ing  251  acres,  part  of  a  tract  of 
land  called,  Sec.  without  any  de- 
scription of  the  part  claimed,  and 
a  writ  of  possession  in  conformity, 
are  both  defective.  Ib. 

5  In  an  action  of  ejectment  by  a  pur- 
chaser under  a  sheriff's  sale,  a- 
gainst  the  debtor,  who  refused  to 
give  up  the  possession  of  the  land, 
it  is  incumbent  on  the  plaintiff  to 
produce  the  judgment,  and  the 
writ  of  fieri  facias,  and  to  prove 
the  sale  of  the  land,  which  may  be 
done  either  by  a  deed  from  the 
sheriff,  or  a  return  of  the  fieri  fa- 
cias. Tlie>  are  sufficient  to  entitle 
him  to  recover.  Ib. 

6.    In  the  absence  of  a  deed 

from  the  sheriff',  and  his  return  lo 
the  fieri  facias,  a  memorandum,  in 
writing,  of  the  sale,  must   be  pro- 
duced, to  take  the  case  out  of  the 
statute  of  frauds.  Ib. 

7 .  A  sheriff's  return  to  a  fieri  facias, 
which  states  a  levy  on  "pari  of  a 
tract   of  land  called,"  &c.  is  void 
for  uncertainty — cannot   be  set  up 
by  matter  de  hors  the  return,  and  a 
sale  under  it  passes  no  title.     But 
a  levy  on  "a  tract  of  land  called," 
&c.  under  a  fieri  facias  against  a 
person  who  was   seized  of  a  part 
of  such  tract,  and  a  sale  under  it, 
will  pass  his  interest  to  the  purcha- 
ser. Thomas's  Lessee  v  Turvey,  435 

See  Witness  2. 

ELECTION. 

1.  If  one  man  takes  another's  mo-' 
ney  to  do  a  thing,  and  he  refuses 
to  do  it,  it  is  a  fraud;  and  it  is  at 
the  election  of  the  party  injured, 
either  to  affirm  the  agreement,  by 
bringing  an  action  for  the  nonpay- 
ment of  the  money,  or  to  disaffirm 
the  agreement  qb  initio,  by  reason 
of  the  fraud,  and  bring  an  action 
for  money  had  and  received.  Mur~ 
phy  v  Barron,  258 

ENTICING. 

See  Slaves  1. 

EQUITY. 

See  Court  of  Chancery. 

ESCROW. 
See  Pleading  14,  15,  16,  17. 

ESTATE  FOR  LIFEi 
Sec  Devise  2, 7,  8. 


INDEX. 


523 


ESTATE  TAIL. 

1.  By  tlie  act  of  1782,  ck.  23,  the  an- 
cient mode  of  docking  estates  tail, 
hy  common  recovery,  was  abolish- 
ed, and  any  person  seized  of  any 
estate  tail  in  possession,  remainder 
or  reversion,  may  convey  the  same 
in  the  same  manner  and  form  that  a 
tenant  in  fee  may.  Newton,  et  al. 
v  Griffith,  et  al.  '  111 

f$et  Descents  1,  3,  4,  5,  6,  8. 

—   Devise  2,  6,  9. 

EVICTION. 

1.  Where  the  extent  and  limits  of 
property  leased  are  not  exactly  de- 
lined  by  the  contract  under  which 
a  tenant  took  possession,  and  in  an 
action  to  recover  the  rent,  the 
tenant  relied  upon  an  eviction  of 
part  of  the  demised  premises  by  a 
third  person  claiming1  under  his 
landlord,  as  a  bar  to  its  payment,  the 
jury  should  look  to  all  the  facts  in 
evidence,  and  from  iliem  deter- 
mine the  limits  of  the  tenant's  lease, 
and  whether  there  was  an  eviction 
or  not.  M'Elderry,  et  al.  v  Flan- 
nagan's  Adm'r.  308 

EVIDENCE. 

1.  In  ejectment  the   lessor    of   the 
plaintiff  died  pending-  the  action, 
and  his  heirs  at  law  were  made  par- 
ties in  his  place,  without  objection, 
and   the   cause   continued  several 
terms,  and  the  plots  were  amend- 
ed—  Held,  that  it  was  not  compe- 
tent for  the  defendant  to  defeat  the 
action  by  giving  evidence  that  one 
of  the  heirs  was  aa  infant  when  she 
was  made  a  party;  and,   that  evi- 

.  dence  that  she  was  an  infant  at  the 
time  of  the  trial,  would  not  entitle 
the  defendant  to  a  verdict  against 
the  other  heirs  who  were  of  full 
age.  James  et  al.  Lessee  v  Doyd,  1 

2.  A  receipt  for  the  purchase  money, 
in  a  deed  for  the  conveyance  of 
land,  is  only  prima  facie  evidence 
of  its  payment.      Higdon,  et  ux.  v 
Thomas,  139 

3.  If  one  party  gives  in  evidence  a 
part  of  a  conversation  between  the 
other  party  arid  the  witness,   it  is 
competent  for  such  other  party  to 
extract  from  the  witness  the  whole 
of  that  conversation.  J.  &  P.  Tur- 
ner v  Jenkins,  et  al.  161 

4.  The  return  of  a   sheriff  to  a  writ 
°f  ft-  fa-  s"owing  a  levy  on  part  of 
a  tract  of  land,  without,  any  descrip- 
tion of  such   part,     is  defective, 


and  a  sale  under  it  passes  no  title, 
Femvick  v  Floyd's  Lessee,  172 

Thomas's  Lessee  t>  Turvey,         435 

5.  In  an  action  of  ejectment  by  a 
purchaser  under  a  sheriff's  sale,  a- 
gainst  the  debtor,  who  refused  to 
give  up  the  possession  of  the  land, 
it  is  incumbent  on  the  plaintiff  to 
produce  in  evidence  the  judgment, 
and  the  writ  of  fi.  fa.  and  to  prove 
the  sale  of  the  land,  which  may  be 
done,  either  by  a  deed  from  the 
sheriff,  or  a  return  of  the  fi.  fit. 
They  are  sufficient  to  entitle   him 
to  recover.  Fenwick  v  Floyd's  Les- 
see, 172 

6.  — —    In  the  absence  of  a  deed  from 
the  sheriff,  and  his  return  to  the 
fi.  fa.  a  memorandum,  in   writing, 
of  the  sale,  must  be  produced,  to 
take  the  case  out  of  the  statute  of 

.    fronds.  Jb. 

7.  Marriage  cannot  be  given  in   evi- 
dence as   the  consideration  of   a 
deed  of  bargain  and  sale  expressed, 
to  be  made  for  a  money  considera- 
tion only .  Belts,  et  ux.  v  The  Union 
Bank  of  Maryland,  1 75 

8.  The  greatest  extent  to  which 

the  authorities  have  gone,  has  been 
to  allow  an  additional  consideration 
to  be  proved,  which  is  not  repug- 
nant to  the  one  mentioned   in  the 
deed;  but  where  a  deed  is  impeach- 
ed for  fraud,  the  party  to  whom  the 
fraud  is  imputed,  will  not  be  per- 
mitted to  prove  any  other  conside- 
ration in  support  of  the  deed.  Jb. 

9.  A  bill  of  sale  of  a  sheriff  for  chat- 
tels levied  on  and  sold  by  him,  in 
improper  testimony  in  itself,  how- 
ever it  may  be  considered,  aceom» 
panied  by  proof  of  the  sheriff's  au- 
thority to  sell  the  property  it  pro- 
fessed to  convey.  Sanderson's  Ex'rs. 
v  Marks,  252 

10.  All  the  testimony  offered  by  the 
plaintiff,  who  sued  as  executor,  be- 
ing rejected  by  the  court  as  in- 
competent, and  the  defendant  hav- 
ing given  in  evidence  declarations 
of  the  testator,  tending  to  prove 
the  plaintiff's  ctaim,  it  is  a  proper 
case  for  the  jury  to  consider  and 
decide,  and  the  court  have  no  right 
to  instruct  the  jury  that  the  plain- 
tiff was  not  entitled  to  recover.  Jb. 

11.  The  jury  alone  are  competent  to 
decide  on  facts  of  which  contradic- 
tory evidence  may  be  offered.  Be- 
fore the  court  can  legally  give  an 
instruction  to  the  jury,  OIK  the  pray- 
er of  one  of  the  parties,  they  must 


524 


INDEX. 


admit  the  truth  of  the  testimony 
offered  by  the  other,  and  that  also 
offered  by  the  party  asking  the  in- 
struction which  may  operatt  in  his 
opponent's  favour,  and  the  exist- 
ence of  all  material  facts,  reasona- 
bly .  deducible  therefrom,  even 
though  contradicted  in  every  par- 
ticular by  the  testimony  of  him 
who  seeks  the  instruction.  Upon 
no  other  principle  can  the  case  be 
withdrawn  from  the.  consideration 
pf  the  jury.  M'Elderry,  ct  al.  v 
Flannagan's  Jld/n'r.  308 

12.  It  is  a  general  rule  of  evidence, 
that  in  a  suit  brought  by  an  incor- 
porated bank,  one  who  is  a  stock- 
fiolder  and  interested  in  the  event 
of  the  suit,  is  not  a  competent  wit- 
ness in  behalf  of  the  institution; 
but  that  rule  is  not  without  excep- 
tion— as  where  an  interested  cor- 
porator is  called   upon  to  prove 
himself  either  to   be   or  to  have 
been  the  depositary  of  the  muni- 
ments of  his  corporation        Union 
Sank  of  Mary/and  v  Ridgcly,  324 

13.  An  interested   corporator,  how- 
ever, is  not  a  competent  witness 
to  prove  that  a  hook  continued  to 
be   one  of  the  muniments  of  his 
corporation  after  Ive  had  ceased  to 
be  the  depositary  thereof.  Ib. 

J-t.  The  adoption  of  a  code  of  by- 
laws by  a  corporation  need  not  ne- 
cessarily be  by  writing,  but  may  be 
proved  as  well  by  the  acts  and  uni- 
form course  of  proceedings  of  such 
corporation,  as  by  an  entry  or  me- 
morandum in  writing.  Ib. 

15.  Under  an  issue  joined  upon  a 
plea  of  general  non  est  factum,  the 
defendant   may  give  in   evidence 
any  thing  which  goes  to  show  the 
instrument  of  writing  was  original- 
ly void  at  common  law — as  lunacy, 
fraud,  coverture,  &c.  or  that  it  had 
become  void  subsequent  tc  its  ex- 
ecution— as  by  erasure,  alterations, 
&c.  for  that  plea  puts  in  issue,  as 
veil  its  continuance  as  a  deed,  as 
Us  execution.  Ib. 

16.  The  defendant  may  give  in  evi- 
dence, under  the  plea  of  general 
yum  est  factum,  that  the  instrument 
of  writing  was  delivered  as  an  es- 
crow, on  a  condition  not  perform- 
ed. Ib. 

17.  Where  the  delivtry  of  a  deed  as 
an  escrow  is  pleaded,  the  issue  is 
upon  that  special  matter,  and  the 
proof  rests  upon  the  defendant; 
and  if  there  be  no  proof  on  the 


part  of  the  defendant,  the  posses- 
sion of  the  instrument  by  the  plain* 
liff,  is prirna  fade  evidence  of  the 
delivery  as  a  deed,  ami  is  sufficient 
to  sustain  the  issue  on  his  part.  Ib. 

18.  The  acts  of  corporations  may  now 
be  evidenced  by  writing  without 
seal.  Ib. 

19.  The  assent  and  acts  of  corpora- 
tions, like  those  of  individuals,  not 
reduced  to  writing,  may  be  infer- 
red from  other  facts  and  circum- 
stances, without  a  violation  of  any 
known  rule  of  evidence.  Ib. 

20.  Where  the  pleadings  in  a  cause 
put  in  issue  the  facts  that  certain 
false  and  deceptious  entries  were 
made    in  the  books  of  a   banking1 
corporation  by  its  clerks,  with  the 
connivance  of  the  cashier,  on  proof 
that  such  books  were  kept  by  the 
clerks  of  the  bank,  and  such  entries 
were    in    their    handwriting,   the 
books  are  evidence  to  show  what 
entries  were  in  them,  which  can 
only  be  done  by  their  production, 
and  are  proper  to  lay  a  foundation 
for  other  testimony  to  show  fraud, 
malconduct,  neglect,  or  violation 
of  duty  by  the  cashier.  Ib. 

21.  As  a  general  rule,  a  person  who 
has  neither  been  examined   upon, 
nor  attended  a  survey  of  lands  made 
by  order  of  court,  is  not  a  compe- 
tent witness  to  give  evidence  at  the 
trial  of  the  cause  in  relation  to  the 
locations  of  the  lands  made  upon 
the  plots.      Wall  v  Forbes,         441 

22.  In  proving  the  relative  prices  of 
different  qualities  of  flour  at  Z,  in 
1817,  other  testimony  is  admissible 
than  direct  positive  proof  from  a 
witness  who  knew  the  value  at  that 
place.  In  the  absence  of  such  posi- 
tive proof  the  jury  may  infer  the 
value,  from  proof  of  the  price  of 
each  kind  of  flour  in  1817,  at  other 
places  in  the  neighbourhood  of  Z, 
and  at  N,  a  port  to  which  flour  was 
commonly  sent  from  Z,  for  inspec- 
tion and  sale;  and  this  latter  species 
of  evidence,   which   is  admissible 
for  the  above  purpose,   is  not  se- 
condary, though  of  a  less  conclu- 
sive character  than   direct  proof. 

Williamson  v  Dillon,  444 

23.  Where  it  was  doubtful,  from  the 
manner  in  which  a  bill  of  excep- 
tions was  drawn  whether  the  whole 
testimony  of  a  witness  was  hear- 
say, part  of  it  being  unquestiona- 
bly so,  the  appellate  court  made  a 
comparison  of  the  several  parts  of 


INDEX. 


525 


Uie  testimony,  and  determined  the 
•whole  to  be  hearsay,  and  therefore 
incompetent.  Jb, 

24.  Information  received  by  one  part- 
ner (the  witness)  from  his  copart- 
ner, of  the  price  of  merchandize 
purchased  by  him  at  Z,  for  which 
the  witness  knew  that  his  house  at 
13,  where  he  resided,  paid  at  the 
price  mentioned,  is  but  hearsay 
evidence  of  the  price  of  such  mer- 
chandize at  Z.  Jb. 

'25.  Where  a  witness  declared  "that 
he  was  called  on  in  the  spring  of 
the  year  1817,  to  state  the  differ- 
ence usually  allowed  on  the  sale  of 
Hour  between  fine,  superfine,  ftc. 
that  he  (hen  stated  the  difference 
\vas  as  follows,"  &c. — Held,  that 
this  might  be  true,  and  yet  the  wit- 
ness have  no  knowledge  of  the 
facts — his  declaration  being,  that 
he  made  the  statement,  and  not 
that  it  was  true.  Such  testimony 
is  not  admissible  evidence.  Ik, 

See  Answer  in  Chancery  1,  2,  3,  4. 

Assets  2. 

Attachment  1. 

— —  Lill  of  Exchange  1,  2,  3,  4. 

— —  Ju-Jgment  2,  3. 
Law  &.  Facts  4. 

— —  Limitation  of  Actions. 

Marriage. 

— —  J'rocedendo  1. 

EXCEPTIONS. 

1.  The  report  of  the  auditor  may  be 
cxcepted  to  in  the  appellate  court, 
wnd  the  whole  accounts  gone  into, 
whether  general  or  special  excep- 
tions, or  no  exceptions,  had  been 
taken  in  the  court  of  chancery — 
Per  Buchanan,  Cli.  J.  S.  &  T. 
Ringgold  v  M.  Itinggold,  et  al.  67 

EXECUTION. 

See  Fieri  Facias. 

EXECUTORS  &  ADMINISTRA. 
TORS. 

1.  An  executor  empowered  to  sell 
lands  by  last  v.iii,  having  sold  theiA 
in  1814,  and  put  the  purchaser  in 
possession,  it  was  his  duty,  if  the 
sale  was  for  cash,  payment  being 
refused,  to  have  sued;  if  on  credit, 
lie  ought,  within  a  reasonable  time, 
to  have  obtained  bond  and  securi- 
ty for  the  purchase  money;  and  at 
all  events  should  have  retained  pos- 
session of  the  land  until  the  neces- 
sary security  was  given.  Omitting 
to  sue  at  law  until  1819,  he  was 


prima  facie  guilty  of  gross  negli- 
gence,  and  responsible,  as  a  trus- 
tee would  be,  lor  the  proceeds  of 
the  lands  from  the  time  of  the  sale, 
deducting  his  reasonable  expenses 
and  commissions.  Uurtt  v  Fisher, 

68 

2.  Where  a  declaration  in  assump&it 
sets  forth  a  claim  or  demand  of  the 
plaintiff' against  the  intestate  of  the 
drfendftnt;  ;;nd  the  intestate's  pro- 
mise to  pay  it — a  reference  of  such, 
demand  by  his  administrator,  (the 
defendant,)  and  the  plaintiff,  to  ar- 
bitrators— an  award,  in  pursuance 
of  such  reference,  for  a  specific  sum 
in  favour  of  the  piaiutif! — a  pro- 
mise by  the  defendant,  as  admini- 
strator,  to  pay  it,   and  charges   a 
breach  in  the  nonpayment  of  that 
sum,  it  contains  matter  enough,  in 
:ui  action  against  the  defendant  in 
his  own  right,   to  warrant  a  judg- 
ment against  him  in  his  character 
of  administrator.     The  plaintiff"  is 
under  no  necessity  to  aver  assets  in 
the  hands  of  the  defendant,  as  ad- 
ministrator,   sufficient   to   pay   his 
debt.    Giles  JLdm'r.  of  Bacon  v  Per- 
ry man,  1 64 

3.  This  peculiar  mode  of  de- 
claring- originated  in  a  plan  to  pre- 
vent the  act  of   limitations  from 
burring,    and  proceeds  upon    the 
ground,   that  it    neither    pledges 
the  personal  responsibility  of  the 
administrator  after  verdict,  nor  de- 
prives him  of  any  defence  he  could 
have  had,   if  he  had  been  charged 
with  an  ussumpsit  by  his  intestate; 
and  with  these  qualifications,  it  will 
be  received  and  adopted.  lb. 

4.  No  form  of  words  is  necessary  to 
be  used  in  an  avcrnn-nt  that  the  de- 
fendant is  administrator.   If  enough 
is  said  so  as  to  amount  to  an  allega- 
tion, that  the  defendant  administer- 
ed on  the  estate  of  the  deceased, 
it  will  suffice.  Jb. 

5.  An  administrator  who  relies  on 
the  general  issue  plea,  after  ver- 
dict,  and  judgment  thereon,  has 
admitted  assets  to  pay   the  claim 
against  him.  Jb. 

See  Declaration  1. 

f —  Distributee  &  Distribution  1. 

*• —  Orphans  Court  1. 

•— —  Verdict  1. 


FACTS. 

Sec  Law  &  Facts. 


INDEX. 


PEE  SIMPLE. 
See  Descents  1,  3, 4,  5. 
Devise  2,  9. 

FEME  COVERT. 

1.  By  the  common  law  a  feme  covert, 
being  an  alien,  is  not  entitled  to  be 
endowed,  nor  to  inherit.  Euchanan 
v  Deshon,  el  al.  280 

2.  The  act  of  1813,  ch.  100,  does  not 
authorise  the  endowment  of  a  fe- 
male alien,  who  during  her  rover 
ture  never  resided  in  the  United 
States.  lb. 

See  Husband  &  Wife. 


FIERI  FACIAS. 

1.  The  return  of  a  sheriff  to  a  writ 
of  fi   fa.  showing  a  levy  on  part  of 
a  tract  of  land,  without  any  descrip- 
tion  of  such  part,    is    defective, 
and  a  sale  under  it  passes  no  title. 
Fenwick  v  Floyd's  Lessee,  172 
Thomas's  I&ssee  v  Turvey,         435 

2.  Joint  property  in  the  possession  of 
one  of  the  owners,  may  be  seized 
and  sold  under  &  fieri  facias  against 
him  only;  and  the  purchaser's  right 
will  be  complete  to  the  extent  of 
the  interest  of  him   against  whom 
the  execution  issued,  and  ne  may 
hold  accordingly.  M'L'lderry,  etal. 
v  Flannagan,  308 

3.  Where  F,  a  ship-carpenter,   con- 
tracted with  C  to  build  a  vessel  for 
him,  which  C  was  to  pay  for  as  the 
work  advanced,  and  furnish  all  the 
materials  and  labour,  except  what 
appertained  to  the  ship-carpenter's 
work,  the  vsssel  being  in  the  pos- 
session of  F,  not  entirely  paid  for, 
and  nearly  finished — held,  that   F 
had  an  interest  in  the  vessel  to  the 
extent  of  the  carpenter's  work  not 
paid  for,  liable  to  seizure  and  sale 
on    process   for  the   recovery    of 
debts.  Ib. 

4.  A  sheriff's  return  to  &  fieri  facias, 
which  states  a  levy  on   "part  of  a 
tract  of  land  called,"   &c.  is  void 
for  uncertainty — cannot  be  set  up 
by  matter  de  hors  the  return,  and 
A  sale    under  it   passes  no    title. 
Thomas's  Lessee  v  Turvey,        435 

.5.  ——But  a  levy  on  "a  tract  of 
land  called,"  &.c.  under  a  fieri  flfc 
das  against  a  person  who  was  seiz- 
ed of  a  part  of  such  tract,  and  a 
sale  under  it,  will  pass  his  interest 
to  the  purchaser.  lb. 

See  Ejectment  3,  4. 

vk— - -  Evidence  5,  6» 


FOREIGN  ATTACHMENT. 

See  Attachment. 

FOREIGN  JUDGMENT. 

See  Judgment  2,  3. 

FRAUD. 

1.  If  one  man  takes  another's  mo- 
ney to  do  a  thing,  and  he  re- 
fuses to  do  it,  it  is  a  fraud;  and  it 
is  at  the  election  of  the  party  in- 
jured, either  to  affirm  the  agree- 
ment by  bringing  an  action  for  the 
nonpayment  of  the  money,  or  to 
disaffirm  the  agreement  ab  initio, 
by  reason  of  the  fraud,  and  bring 
an  action  for  money  had  and  re- 
ceived to  his  use.  Murphey  v  Bar- 
ron,  258 

See  Consideration  2. 

FRAUDS,  (STATUTE  OF) 

See  Statute  of  Frauds. 


GARNISHEE. 

See  Attachment. 

GENERAL  REPUTATION. 

See  Reputation. 

GIFT. 

1.  If  a  father,  as  natural  guardian  of 
his  child,  was  in  possession  of  a 
slave  at  the  time  of  a  gift  of  the 
slave  by  the  owner  to  the  child,  it 
was  such  a  possession  as  was  re- 
quireu  by  the  act  of  1763,  ch.  13, 
s.  3,  to  make  it  a  valid  gift,  and 
passed  the  property  without  any 
further  delay  by  the  donor.  San- 
derson's Ex'rs  v  Marks,  252 

GRACE. 
See  Days  of  Grace. 

GRANT. 

See  Name  1 . 

GRANDCHILDREN. 

See  Distributee  &  Distribution. 

GUARDIAN. 

See  Court  of  Chancery  16,  17. 
Natural  Guardian. 


HEARSAY  EVIDENCE. 

See  Evidence  22,  23,  24,  251. 

HEIRS. 

SjeJDescentS  1,  2,  4". 


INDEX. 


527 


*Jfet  Ejectment  1 . 

— — —  Evidence  1. 

HUSBAND  AND  WIFE. 

1.  A  wife  being  entitled  to  the  pro- 
ceeds of  lands  devised  to  be  sold, 
dying  after  a  sale  of  them,  her  hus- 
band surviving1  is  entitled  to  the 
proceeds  thereof.     Hurtt  v  Fisher, 

88 

2.  The   consideration   of  an  agree- 
ment  being   for  the  sale   of   the 
wife's  land,  in  the  absence   of  an 
express  promise,  the  law  will  raise 
one  to   the    husband  and   wife,  on 
which  the  husband  may  sue  either 
in  his  own  name,  or  in  the  names 
of  himself  and   wife;   and  in  such 
case,  even  if  there  was  an  express 
promise  to  the   husband,  the  wife 
might  be  joined  as  plaintiff.    Hig- 
dtm,  et  ux.  v  Thomas,  139 

3.  But  a  feme  covert  cannot  be  join- 
ed in  an  action  to  recover  the  price 
of  property  sold  by  her,  and  which 
belonged  to  her  before  coverture, 
or  for  the  value  of  services  by  her 
personally  rendered,  unless  th'ere 
be  an  express  promise  of  payment 
to  her.    The  distinction  arises  from 
rights  which  pass  to  the  husband 
absolutely,  and  those  which  sur- 
vive to  the  wife,  and  over  which 
he  has  no  power  of  transfer  but  by 
the  consent  and  co-operation  of  the 
wife.  M' 

4.  The  lands  of  an  intestate,  being 
incapable  of  a  beneficial  division, 
on  the  petition  of  his   heirs,  and 
by  the  order  of  the  court  of  chan- 
cery, were  sold,  and  the  sale  rati- 
fied.     After  this  ratification/ and 
as  to  part  of  the  proceeds  prior  to 
any  order  or  decree  adjudging  who 
was  entitled  thereto,  one   of  the 
heirs,  a  married  woman,  died.  Her 
husband,   who   survived   her,  and 
who  was  a  party  to  the  petition, 
also  died — Held,  that  the  husband's 
representatives  were  not  entitled 
to  the  wife's  portion  of  that  part  of 
the  proceeds  of  her  father's  estate, 
respecting  which  no  order  or  de- 
cree of  distribution  had  been  pass- 
ed at  the  time  of  the  husband's 
death,  but  that  it  belonged  to  her 
personal  representatives.     Leaden- 
ham's  Ex'r.  v  Nicholson,  et  al,     267 

5.  The  representatives  of  a  husband 
who  survived  his  wife,  are  entitled 
to  the  chases  in  action  of  the  wife, 
where  the  husband  had  either  re- 
duced th,em  into  possession,  or  ob- 


tained judgment  for  them  at  law 
or  in  equity,  either  in  his  own  fa* 
vour  or  of  himself  and  wife.       Ib. 
6.  An  agreement  between  a  man  and 
his  intended  wife,  in  consideratiou 
of  marriage,  (which   had  none  of" 
the  legal  attributes  of  a  marriage 
settlement,  so  as  to  overreach  the 
claims  of  creditors,)  to  secure  to 
her,  for  her  own  use,  an  annuity 
for  life,  may,  after  the   marriage, 
and  the  death  of  the   husband,  be 
enforced  by   the  wife  against  his 
representatives;  and  his  estate  be- 
ing insufficient  to   pay  his  debts, 
she  will  be  treated  as  a  general  cre- 
ditor to  the  extent  of  her  claims 
under  the  agreement,  and  her  di- 
vidend so  invested  as  to  produce  as 
much  of  the  annuity  as  practicable. 
But  where  the  widow  having  claim- 
ed payment  only   of  her   annuity 
from  the  time  of  the  death  of  her 
husband,  her  dividend  was  estimat- 
ed npon  its  arrearages,  from  that 
time  to  the  sale  of  his  estate,  and 
the    interest   which    had    accrued 
thereon.  Buchanan  v  Deshon,  et  al. 
280 

7.  Under  the  above  agreement,. 

the  children  of  the  marriage,  suc- 
ceeding to  the  rights  of  the  wife, 
the  dividend  of  the  estate  of  the 
husband,  invested  for  the  benefit 
of  the  mother,  will,  after  her  death, 
b<5  divided  equally  among  the  chil- 
dren, and  their  proper  representa- 
tives. /&, 

See  Bill  of  Exchange  2,  4. 

I  J 

IMPLIED  ASSUMI'SIT. 

See  Agreement  1. 

Assumpsit  3. 

Husband  and  Wife  2. 

INCOMPETENT   EVIDENCE  & 
WITNESS. 

See  Evidence  12, 13,  21,  23,  25. 

Witness. 

INFANT. 

See  Conrt  of  Chancery  16, 

Ejectment  1. 

INSOLVENT  DEBTOR. 
1.  The  assets  of  insolvents  are  disr 

tributable   according  to  equity. 

M'Culloh  v  Daehidl's  Aftn'r .       9& 
Set  Appeal  5. 


fNDEX, 


INSURANCE. 

1.  The  strictness  and  nicety  which 
have  been  wisely  adopted  in  the 
trial  of  questions  arising  on   poli- 
cies of  marine  insurance,  are  not, 
to  their  full  extent,  applicable  to 
the  policies,  of  fire  insurance  asso- 
ciations, formed  for  the  individual 
accommodation  and  security  of  its 
members — the  risk  being  assumed 
on  the  knowledge  acquired  by  an 
actual  examination  made  by  the  of- 
ficers of  the  company,  and  not  on 
the  representations   coming   from 
the  assured.    Jolly's  Jldm'rs.  v  Hal- 
timore  Equitable  Society,  &c.     295 

2.  Such   an'  association  cannot 

be  viewed  as  involving  in  it  a  mu- 
tual relinquishment  of  the  right  of 
exercising  those  ordinary  necessa- 
ry  acts   of  ownership   over   their 
houses,  which  have  been  usually 
exercised   by  the  owners  of  such 
property;  and,  consequently,  the 
insured  is  authorised  to  make  any 
necessary  repairs  in  the  mode  com- 
monly pursued  on  such  occasions. 
But  if  by  gross  negligence  or  mis- 
conduct of  the  workmen  employ- 
ed, a  loss  by  fire  ensue;  or  if  alte- 
rations be  made  in  ihe  subject  in- 
sured   materially   enhancing    the 
risk,  and  not  necessary  to  the  en- 
joyment of  the  premises  insured; 
or   which,  according  to  usage  and 
custom,  were  not  the  result  of  the 
exercise,  of  such  ordinary  acts  of 
ownership,  as  in  the  understanding 
of  the   parties  were   conceded  to 
the  insured  at  the  time  of  the  in- 
surance, and  a  loss  by  fire  is  there- 
by   produced,  then  are  the  under- 
writers  released  from  all   liability 
to  indemnify  for  sudh  loss.         Ib. 

3., In  the  absence  of  any  con- 
tract, or  established  rule  of  law, 
determining  what  repairs  or  altera- 
tions the  insured  was  authorised  to 
make;  or  whether,  if  authorised, 
they  were  made  in  the  usual  way, 
the  jury  is  the  proper  tribunal  to 
decide  those  questions.  Ib. 

4.  Alterations  and  additions  to  houses 
insured  against  fire,  do  not  per  se, 
change  the  risk;  they  remain  sub- 
ject to  the  same  perils,  although 
their  degree  may  be  increased  or 
diminished;  and  the  jury  is  the 
proper  tribunal  to  decide  whether 
the  risk  has  been  increased.  Ib. 

INTEREST. 
See  Cause  of  Action  1. 


See  Trust  &  Trustees  9, 10,  11,  12, 
13,  14. 

INTESTATE. 

1.  A  dying  intestate,  means  a  dying 
without  making  i  valid  and  opera- 
tive disposition  by  will.     Newton, 
et  al.  v  Griffith,  et  al.  11 L 

2.  In  the  distribution  of  the  person- 
al estate  of  an  intestate,  who  died 
leaving  no  descendants,  but   leav- 
ing a  brother,  and  the  children  and 
grandchildren  of  a  deceased  sister 
and  brother,  it  was  held,  that  the 
grandchildren,  (being  the  children 
of  a  son   or  daughter   of  the  de- 
ceased sister  or  brother  of  the  in- 
testate    who    died    before   him,) 
were  not  entitled  to  any  portion  of 
the  estate.       Duvall,  et  ux-  v  Har- 
wood's  Mm* rs.  474 

3.  The  share  of  a  brother  who 

survived   the   intestate,    but   who 
died  before  the  distribution  of  the 
intestate's  estate,  is  payable  to  the 
executor  or  administrator  of  such 
brother.  lit. 

JOINT  &  SEPARATE  CREDI- 
TORS. 

1.  C  &  T  drew  a  bill  in  favour  of  M, 
on  1)  &  Bi,  partners  in  trade,  which 
they  accepted.     M  sued  D  &  B  at 
law  on  their  acceptance,  and  pend- 
ing the  suit  U  died.      Judgment 
was  had  against  B,  and  he  being 
insolvent  obtained  a  discharge  un- 
der the  insolvent  laws.   P  adminis- 
tered on  D's  estate,   and  received 
rvs-iets  from  his  separate  property 
to  a  large  amount,  though  insuffi- 
cient to  pay  D's  individual  debts, 
and  also  received  some  of  the  part- 
nership funds.     The  judgment  not 
being  paid,  and    the   partnership 
funds  being  insufficient  to  pay  its 
debts,  M  filed  a  bill   in  equity  a- 
gainst  D's  administrator,   claiming' 
to  be  paid  out  of  the  separate  as- 
sets, an  equal  proportion  with  D's 
separate  creditors  —Held,  that  he 
was  not  entitled  to  recover.  M'Cul- 
loh  v  DashieWs  Jldm'r.     '•  96 

2.  Joint  creditors,  in  equity,  can  on- 
ly look  to  the  surplus  of  the  sepa- 
rate estate,  after  the  payment  of 
the  separate  debts.  Ib. 

3.  Separate  creditors,  in  equity,  can 
only  seek  indemnity  from  the  sur- 
plus of  the  joint  fund,  after  the 
satisfaction  of  the  joint  creditors. 

Ib. 


INDEX. 


529 


4.  Where  the  claims  of  joint  credi- 
tors do  not  come  into  conflict  with 
those  of  the  separate  creditors,  but 
only  with  the  interests   of  the  re- 
presentatives of  the  deceased  part- 
ner,  equity   will  decree  to    joint 
creditors    a    satisfaction    of  their 
claims,   by    considering  them,    as 
they  are  considered  at  law,   both 
joint  and  several.  Ib. 

5.  At  lu\v  the  joint  creditors    may 
pursue  both  tiie  joint  and  separate 
estate,  to  the  extent  of  each,   for 
the  satisfaction   of  their  joint  de- 
mands, without  restriction  from  a 
court  of  equity;   yet  when  by  tho 
death  of  one  of-  the   parties,   the 
legal  right  survives  against  the  sur- 
viving partner,  and  'n  extinguished 
against  the  deceased  partner,   thut 
court  will  give  to  the  separate  cre- 
ditors all  the  advantages  thus  by 
accident  thrown  upon  them.      7i. 

JOINT  &  SEPARATE  DEDT5  Si 


frc  Fieri  Facias  2. 

-  Joint  Si  Separate  Creditors. 

JOINT  &.  SEPARATE  ESTATE. 
iVee  Joint  &;  Separate  Creditors, 

JOINT  OWN  Ell. 

See  Fieri  Facias  2. 

—  -   Partners  Ss  Partnership  -. 

-  Replevin  3. 

ISSUE. 
See  Devise  2,  3,  4,  5,  6. 

ISSUES. 

Scs  Pleading;. 

JUDGMENT. 

1.  In  an  action  on  a  promissory  not?, 
drawn  in  favour  of  C  8t  1>,  and  en- 
dorsed by  R  in  their  names,  to  P, 
the  writ  was  against  II  <w  surviving 
jjaiiner  nf  C,   hut  the   declaration 
was   not.     It   was   proved    that   G 
died  before  the  making  of  the  note. 
Judgment  \vas  rendered  against  H 
without  stating  as  surviving  part- 
ner.  On  appeal  —  judgment  affirm- 
ed.     lialar^  v  Bank  of  Columbia, 

231 

2.  Foreign  judgments  are  not  con- 
clusive when  sought  to  be  enforced 
by  suits  being  brought  upon  them 
—  they  are  then    but  prima  fade 
evidence—  may  be  impeached  for 
irregularity,   and  rebutted  by  evi- 
dence. Taylor  <J  J/'Aca/  v  Phelps, 

492 


3.  The  judgments  of  foreign  courts 
of  competent  jurisdiction,  when 
they  c^rne  incidentally  in  question 
— as  where  they  are  relied  upon 
by  garnishee*  as  a  protection  a- 
gainst  the  claims  of  their  former 
creditors,  have  the  force  and  effect 
of  domestic  judgments,  and  are 
conclusive.  Ib. 

See  Attachment  I,  2. 

Executors  &,  Administrators  2. 

JURISDICTION. 

See  Court  of  Chancery  18. 

JURY. 
See  Law  &  Facts. 


LAND. 

1.  The  proceeds  of  land  devised  to 
be  sold,  are  thereby  turned  into 
money,  and  considered  in  equity  as 
personal  estate.  Hurtt  v  Fisher,  8S 

~.  In  equity  money  directed  to  be 
laid  out  in  land,  will  before  invest- 
ment, be  considered  as  land;  ami 
land  directed  to  be  sold  and  con- 
verted into  money,  will*  before  a 
sale,  be  considered  as  money,  and 
pass  as  such.  J-caifenfiam's  £x'r. 
v  Nicholson,  el  a!.  267 


LANDLORD  Si  TENANT. 

1.  Where  a  landlord  having  leased 
property   to    one    tenant,    subse- 
quently leased  a  part  of  the  same 
property  to  another,  the  first  is  un- 
der no  obligation  to  resist  the  se- 
cond by  force  in  taking  possession; 
and  notice  by  the  first  to  the  se- 
cond tenant,  (after  a  distress  levied 
by  the   landlord   on  the  former,) 
that  he  should  considev  him  his 
tenant,   is  nugatory   and  inopera- 
tive.     M'Jttdcrry,  tt  al.  v  Flawna- 
gun,  303 

2.  Where  F, a  ship-carpenter,  contrac- 
ted withC  to  build  him  a  vessel, for 
which  C  was  to  pay  as  the  work  ad- 
vanced, and  furnish  all  the  materi- 
als and  labour  except  what  apper- 
tained to  the  ship  -car  penter's  work, 
the  vessel  being  in  the  possession 
of  F,   not  entirely    paid    for,  and 
nearly  finished,   was  levied  on  by 
the  landlord  of  the  ship-yard  as  a 
distress  for  rent — Held,  that  F  had 
an  interest  in  the  vessel  to  the  ex- 
tent of  his  carpenter's   work  not 
then  paid  for,  liable  to  seizure  and 


VOL.  I. 


67 


530 


INDEX. 


sale  on  process  for  the  recovery  of 
debts,  or  rent  due  by  him.          Ib. 
See  Eviction  1. 

LAW  &  FACTS. 

1.  Where  a  plaintiff  offers  no  testi- 
mony to  the  jury,  or  such  as  is  so 
slight  and  inconclusive  that  a  ra- 
tional mind  cannot  draw  the  con- 
clusions sought  to  be  deduced  from 
it,  it  is  the  right  of  the  court,  and 
their  duty,   when  applied  to  for 
that  purpose,  to  instruct  the  jury, 
that  the  plaintiff  is  not  entitled  to 
recover.  Morris  v  Bricldey  &  Cald- 
well,  107 

2.  A  positive  and  absolute  direction 
to  the  jury  will  not  be  granted,  if 
it  obliges  the  court  to  discredit  a 
witness;  to  do  that  the  intervention 
of  a  jury  is  peculiarly  necessary. 

Ib. 

3.  The  jury  alone  are  competent  to 
decide  on  facts  of  which  contradic- 
tory evidence  may  be  offered.  Be- 
fore the  court  can  legally  give  an 
instruction  to  the  jury,  on' the  pray- 
er of  one  of  the  parties,  they  must 
admit  the  truth  of  the  testimony 
offered  by  the  other,  and  that  also 
offered  hy  the  party  asking  the  ir- 
struction  which  may  operate  in  his 
opponent's  favour,  and  the  exist- 
ence of  all  material  facts,  reasona- 
bly   deducible    therefrom,     even 
though  contradicted  in  every  par- 
ticular by  the  testimony   of  him 
who  seeks  the  instruction.     Upon 
no  other  principle  can  the  case  be 
withdrawn  from  the  consideration 
of  the  jury.      M'Elderry,  et  al.  v 
Flannagan's  Adrn'r.  308 

4.  Whether  or  not  the  drawer  of  a 
bill  of  exchange  had  reasonable 
grounds  to  expect  that    his    bill 
would  be  honoured,  (that  facts  up- 
on which  thai    question  arises  be- 
ing admitted  or  undeniable,)  is  ex- 
clusively a  matter  of  law  to  be  pro- 
nounced by  the  court;  but  if  the 
facts  be  controverted,  or  the  proof 
be   equivocal,     or    contradictory, 
then  it  becomes  a  mixed  question, 
both  of  law  and  fact,  in  which  case, 
the  court  hypothetically  instruct 
the  jury  as  to  the  law,   to  be  pro- 
nounced accordingly   as  they  may 
find  the  facts.     Cathellv  Goodwin, 

468 

iSee  Evidence  10. 
»—-  Insurance  3,  4. 
"——  Limitation  of  Actions  13. 


LEGACY  &  LEGATEE. 

1.  A  legacy  of  a  less  amount  than  the 
sum  due  to  the  legatee,  is  not  con- 
sidered in  law  a  satisfaction  of  a 
pecuniary  debt.  Owings's  Ex'rs. 
v  Owings,  484 

LETTERS  OF  ADMINISTRATION 

&  TESTAMENTARY. 
Sec  Orphans  Court  1. 
Profert  1. 

LETTERS  ROGATORY. 

See  Commission  &,  Commissioners  2. 

LIEN. 

1.  Where  F,  a  ship-carpenter,  con- 
tracted with  C  to  build  a  vessel  for 
him,  for  which  C  was  to  pay  as  the 
work  advanced,  and  furnish  all  the 
materials  and  labour,  except  what 
appertained  to  the  ship-carpenter's 
work,  the  vessel  being  in  the  pos- 
session of  F,  not  entirely  paid  for, 
and  nearly  finished,  was  levied  on 
by  the  landlord  of  the  ship-yard  as 
a  distress  for  rent — Held,  that  F 
had  an  interest  in  the  vessel  to  the 
extent  of  his  carpenter's  work  not- 
paid  for,  liable  to  seizure  and  sale 
on  process  for  the  recovery  of 
debts,  nrrent  due  by  him.  M'El- 
derry,  ct  al.  v  Flannagan,  308 

LIFE  ESTATE. 

See  Estate  for  Life. 

LIMITATION  OF  ACTIONS. 

1.  The  act  of  limitations,  (1715,  cfi. 
23,)  does  not  extinguish  the  debt, 
but  only  bars  the  remedy.  An  ac- 
knowledgment of  a  debt,  or  a  pro- 
mise to  pay  it,  by  the  defendant, 
within  the  time  prescribed,  is  suf- 
ficient to  revive  the  action.  Oliver 
v  Gray,  204 

2. Held,  1.  That  the  suit  is  to 

be  brought  on  the  original  cause  of 
action,  and  not  on  the  new  promise 
or  acknowledgment,  which  only 
restores  the  remedy.  Ib. 

3.  As  to  what  promises  or  acknow- 
ledgments will  take  a  case  out  of  the 
act  of  limitations — Held,  2.   That 
the  promise  need  not  be  absolute, 
but  a  conditional  promise  is  suffi- 
cient; and  in  such  case  it  is  incum- 
bent on  the  plaintiff  to  show  at  the 
trial,  either  a   performance  of  the 
condition,  or  a  readiness  to  perform 
it.  Ib. 

4.  Held,  3    That  the  acknow- 
ledgment must  be  of  a  present  sub- 


INDEX. 


531 


sistinff  debt,  unaccompanied  by 
any  qualification  or  declarations, 
which,  if  true,  would  exempt  a  de- 
fendant from  a  moral  obligation  to 
pay.  Ib. 

3.  -  —  Held,  4.  That  such  an  ac- 
knowledgment, accompanied  with 
a  naked  refusal  to  pay,  or  a  refusal 
and  an  excuse  for  not  paying, 
which  in  itself  implied  an  admis- 
sion that  the  debt  remained  due, 
and  furnished  no  real  objection  to 
the  payment  of  it,  is  sufficient.  Ib. 

6.  —    Held,  5.  That  an  unqualified 
acknowledgment,     &c.     with     no 
other  excuse  for  not  paying  than  a 
reliance  on  the  bar  created  by  the 
act  of  limitations  is  sufficient  to 
take  the  case  out  of  the  act.      Ib. 

7.  —     Held,  6.   That   the   acknow- 
ledgment may  be  in  whole  or  in 
p-u-t.  74. 

3.  Held,  7.  That  it  is  sufficient 

if  it  be  after  bringing  'he  suit.  Ib. 

9. Held,  8.  An  admission  that 

the  sum  chtimeil  has  not  been  paid, 
is  not  sufficient  to  take  a  case  out 
of  the  act  of  limitations,  without 
some  further  admission,  or  other 
proof  that  the  debt  once  existed.  Ib. 

10  Held,  9.  The  acknowledg- 
ment need  not  be  made  to  the  plain- 
tiff himself,  but  may  be  made  to 
anybody  else.  -  Ib. 

jj. Held,  10.  It  is  for  the  court 

to  deckle  what  kind  of  promise  or 
acknowledgment  is  sufficient  to 
take  a  case  out  of  the  act  of  limita- 
tions, and  the  evidence,  offered  to 
prove  such  promise  or  acknow- 
ledgment, is  proper  to  be  submit- 
ted to  the  jury,  as  in  other  cases, 
under  the  direction  of  the  court.  Ib. 

12-  Kvery  acknowledgment  which  is 
offered  to  take  a  case  out  of  the 
act  of  limitations,  must  be  taken 
all  together;  and  no  evidence  can 
be  received,  to  turn  a  denial  of  the 
existence  of  a  debt  into  an  ac- 
knowledgment of  a  subsisting  lia- 
bility, by  proving  that  the  party 
making  the  admission  was  mistaken 
in  supposing  the  debt  to  have  been 
paid.  lit. 

13.  Where  the  plaintiff  chooses  to 
introduce  the  defendant's  declara- 
tions, he  must  be  content  to   take 
them  as  they  are,    and  cannot   be 
permitted   to  disprove    them    by 
other  evidence.  Ib. 

14.  A  receipt  for  a  sum  of  money, 
whereby  the  person  receiving  it 
undertook  to  return  the  sum  bor- 


rowed "when  called  on  to  do  so," 
creates  a  cause  of  action  from  its 
date,  bearing  interest,  and  again&t 
which  the  act  of  limitations  begins 
to  run,  from  that  time.  Darnalfs 
Ejc'rs.  v  Magruder,  4 ->9 

15.  In  an  action  on  a  promissory  note 
payable  four  months  after  date,  Mic 
defendant  pleaded  non  assurapxit 
infra  Ires  annos,  to  which  the  plain- 
tiff replied,  that  he  at  the  time  of 
making  the  promise,   was  beyond 
seas  and  without  the  jurisdiction 
of  the  court,  and  so  remained  and 
continued,  &c.   and  the  defendant 
demurred — judgment  was  render- 
ed for  the  plaintiff,  as  that  mod*  of 
pleading   the  *ct  of  limitation^  in, 
this  case  was  defective.     Murdoch 
v  Winter's  Jidm'r  471 

16.  The  act  of  limitations  begins  to 
operate  as  a  bar  from  the  time  the 
cause  of  action  arises,  and  not  from 
the  time  of  making  the  promise.  Ib. 

LIMITATION  OF  ESTATE. 

See  Devise  2,  3,  4,  5,  6,  7,  8. 

JAK 

MARRIAGE. 

1.  Marriage  cannot  be  given  in  evi- 
dence as   the  consideration  of   a 
deed  of  bargain  and  sale  expressed 
to  be  made  for  a  money  considera- 
tion.     Bells,  et  ux.  v  The  Union 
Hunk  of  Maryland,  175 

2.  Ante-nuptial  settlements,  made  in 
consideration  of  marriage,  are  good, 
even  though  the  party   be  then  in- 
debted. Ib. 

See  Husband  &  Wife. 

MEASURE  OF  DAMAGE. 

Hee  Contract  3,  4,  5. 

MECHANICS. 
See  Lien  1. 

MESNE  PROFITS. 
See  Court  of  Chancery  17,  18, 


See.  Infant. 


MINORS. 


MIXTURE  OF  PROPERTY. 
1.  In  the  case  of  a  mixture  of  proper- 
ty, from  necessity  the  full  value  is 
given  to  the  innocent  party      &  & 
T.  Jiinggold  v  M.  Ringgold,  ct  al,  1 1 

MONEY. 
Set  Land  1,  2. 


532 


INDEX. 


MONEY  HAD  &  RECEIVED. 

1.  The  action  for  money  had  and  re- 
ceived,  is  an  equitable  action,  and 
equally  as  remedial  in  its  effects  as 
a  bill  iu  equity.     Murphy  v  Bar- 
ron,  258 

2.  If  one  man  takes   another's  mo- 
ney to  do  a  thing,  and  he  refuses 
to  do  it,  it   is  a  fraud;   and  it  is  at 
the  election  of  the   party  injured, 
either  to  affirm  the  agreement,  by 
bringing  an  action  for  the  nonpay- 
ment of  the  money,  or  to  disaffirm 
the  agreement  ab  initio,  by  reason 
of  the  fraud,  and   bring  an  action 
for  money  had  and  received  to  his 
use.  II. 

3.  — —  But  where  a  vendor  was  ex- 
onerated from   the    delivery  of  a 
slave,  then  out  of  his  possession, 
whom  he  had  sold,  and  been  paid 
for,  and  afterwards  persuaded  or 
enticed  to  abscond,  so  that  the  pur- 
chaser never  got  possession  of  him, 
no  action  can  be  maintained  upon 
the  contract  of  sale  for  a  nonde- 
livery, or  to  recover  back  the  pur- 
chase  money,   as  money  had  and 
received  by  him  to  the  use  of  the 
vendee.     Either  could  have  been 
maintained,  if  it  had  been  the  ven- 
dor's duty  to  deliver  thf  slave,  and 
he  had  refused.  The  proper  reme- 
dy here  is  a  special  action   on  the 
case  for  persuading  or  enticing  the 
slave  to  abscond,  Jb. 

XT 

NAME. 

1.  A  tract  of  land  may  acquire,  by 
reputation,  a  name  different  from 
that  which  it  bears  in  the  patent, 
and  may  pass  by  such  acquired 
name.  Wall  v  Forbes,  441 

NATURAL  GUARDIAN. 

See  Gift  1. 

NEGLIGENCE. 

See  Trust  &  Trustee  7, 12, 17,  18,  19. 

NEGROES  &.  SLAVES. 
See  Slaves. 

NEW  PARTIES. 
Sec  Ejectment  1. 

NON  EST  FACTUM. 

See  Pleading  4,  S,  8,  10, 11,  12,  14. 

NOTICE. 

&e  Bill  of  Exchange  1,  4. 


See  Landlord  Si  Tenant  1. 
Usage. 


OFFICE  FOUND. 

See  Alien. 

ORPHANS  COURT. 

1.  The  orphans  court,  at  July  lerni, 
1824,  on  the  petition  of  J  S,  or- 
dered the  register  to  grant  him  let- 
ters of  administration  on  the  estate 
of  R  S,  on  liis  giving  bond,  with 
security.  On  the  13th  of  Septem- 
ber 1824,  in  the  recess  of  the  court, 
letters  were  accordingly  grunted. 
On  the  14th  of  the  same  month  and 
year,  still  in  the  recess  of  the  court, 
W  S,  the  only  surviving  brother 
of  the  deceased,  by  his  petition, 
objected  to  letters  so  granted,  ex- 
cepted  to  such  appointment,  and 
prayed  an  appeal,  which  was  grant- 
ed by  the  court  on  the  13th  of  Oc- 
tober 1824.  The  court  of  appeals 
dismissed  the  appeal.  Se&ell  v 
Sewell's  Jldinr.  1).  B.  N.  9 

2.  By  the  act  of  1818,  ck.  204,  ap- 
peals from  the  orders  and  decisions 
of  the  orphans  courts,  must  be 
made  within  thirty  days  after  such 
order  or  decision.  Iti 


PAROL  EVIDENCE. 

See  Corporation  3. 
— —  Evidence. 

PARTIES. 

See  Appeal  6. 

Court  of  Chancery  21. 

Ejectment  1. 

PARTNERS  &  PARTNERSHIP. 
1.  C  &  T  drew  a  bill  in  favour  of  M, 
on  D  &.  B,  partners  in  trade,  which 
they  accepted.  M  sued  D  Si  B  at 
Jaw  on  their  acceptance,  and  pend- 
ing the  suit  D  died.  Judgment 
was  had  against  P,and  he  being 
insolvent  obtained  a  discharge  un- 
der the  insolvent  laws.  P  admi- 
nistered on  D's  estate,  and  receiv. 
cd  assets  from  his  separate  proper- 
ty to  a  large  amount,  though  insuf- 
ficient to  pay  D's  individual  debts,- 
he  also  received  some  of  the  part- 
nership funds.  The  judgment  not 
being  paid,  and  the  partnership 
funds  being  insufficient  to  pa}'  its 
debts,  M  filed  a  bill  in  equity  a. 


INDEX. 


533 


gainst  D's  administrator,  claiming1 
lo  be  paid  out  of  the  separate  as- 
sets, an  equal  proportion  \vilh  D's 
separate  creditors — Held,  tliat  lie 
was  entitled  to  recover.  M'Cul- 
lok  v  Das/iicll's  .Mm'r.  % 

~.  Where  one  part-owner  sells,  as 
his  own,  the  property  of  his  firm, 
all  the  partners  may  sue.  1/igdoii, 
>t  ux.  v  Thomas,  153 

•SVc  Court  of  Chancery  10,  11,  12, 13. 

Fieri  Facias  2. 

•  Joint  and  Separate  Creditors  2, 

-",  4,  5. 

PAHTNERSHIP    FUNDS. 

•*>'('  Joint  and  Separate  Creditors. 
•  Partners  and  Partnership. 

PKHSOXAL ESTATE. 

jSce  Lands  1. 


PHYSICIAN. 

-Set-  Assumpsit  2. 

PLEADING. 

1.  A  writ  of  scire  facias  against  ape.- 
rial  bail,  which  does  not  recite  the 
issue  and  return  of  a  ca.  sa.  against 
the  principal,  is  sufficient  upon  is- 
sue joined   on  the  plea  of  mil  ticl 
recur d.      Cappeau's  Bail,  v  Midtllc- 
tun  &?  Baker t  1 54 

2.    To  such  writ,  the  bail  having 

pleaded  the  death  of  his  principal 
before    any    ca.   sa.  returned,   the 
plaintiff,  in  his  replication,  travers- 
ed that  fact,  and  tendered  an  is.sue 
to  the  country.    Its  conclusion  was 
technically   right.     An  issue  join- 
ed on  such  pleadings,  is  not  an  im- 
material one — the  whole  matter  in 
controversy   being   decided   bv  it. 

Ib. 

3.  The  omission  of  the    plaintiff  in 
his-  replication  to  set  out  the  ca.  sa. 
and  return,  in  proceedings  against 
bail,  is  mere  informality  in  plead- 
ing— bad   only   on   demurrer,  but 
cured  by  verdict,  fb. 

•],  A  plea  of  special  non  est  ftic/um 
is  a  general  issue  plea,  and  like 
other  general  issue  pleas  need  not 
be  pleaded  before  the  rule  day, 
but  may  be  received  when  the 
cause  is  called  up  for  trial.  Union 
Bank  of  Maryland  v  Jlidifdi/,  324 

S.  Whatever  apparent  inconsistency 
there  maybe  between  the  pleas  of 
general  performance  and  non  est 
faclum,  it  is  the  settled  practice 
under  ihc  statiUe,  4  .2;w,  ch.  16,  to 


receive  them;  for  defendants  are 
not  confined  to  picas  strictly  con- 
sistent. //.. 
6  The  only  pleas  now  disallowed, 
on  the  mere  ground  of  inconsisten- 
cy, are  the  general  issue,  and  ten- 
der; and  the  reason  is,  that  one 
gc>«s  to  deny  the  existence  of  any, 
while  the  other  admits  some  cause 
of  action.  Ib. 

7.  Where  the  plaintiffs  in  their  re- 
plication set  out  a  code  of  by-laws 
of  their    corporation,    which    pre- 
scribe   the    duties  of  an  officer  of 
the   corporation,   and  then  assigns 
as  a  breach,  a  violation  of  duties  so 
prescribed,  on  which   breach  issue 
is  tendered  by  the  defendant,  and 
joined   by   the   plaintiffs,  such  b) - 
laws  are   virtually  admitted  by  the 
defendant  in  his  pleadings          Jb. 

8.  It  is  a  general  principle  of  plead- 
ing, that   where  a  plea  produces  a 
direct  affirmative  and  negative  by 
denying  the   allegation  in   the  de- 
claration, it  should  conclude  to  the 
country,  whether  the  affirmative  of 
the  issue  is  held  by  the  plaintiff  or 
defendant;   and   that  the   proof  of 
the  affirmative  rests  on  him    who 
asserts  it.  Hi. 

9.  AVhen   new   matter   is  introduced 
on  either  side,  the   ple:*ding  ought 
to  conclude  with  a  verification.   Jb, 

10.   In   the  application    of  the 

above  rules,   the    plea   of  general 
'nun  est  factum  in  an  action  of  debt 
on  a  bond,   which  by  denying  the 
allegation  in   the   declaration    that 
it  is  the  writing  obligatory  of  the 
defendant,    makes    the    issue    be- 
tween   the   parties — concludes   to 
the  country,  mid  throws  the  whole 
proof  of  the  execution  of  the  bond, 
including  the  delivery,   upon   the 
plaintiff,  who  in   that  case   asser* 
the  affirmative.  Ib. 

11.  Under  an   issue  joined  upon   a. 
plea  of  general  non  est  factum,  the 
defendant  may  give  in  evidence  any- 
thing which  goes  to  show  that  the 
instrument  of  writing  was  original- 
ly void  at  common  law — aslunac\, 
fraud,  coverture,  &.c.  or  that  it  h;;<l 
become   void  subsequent  to  its  ex- 
ecution— as  by  erasure,  alterations, 
&c.  for  that  plea  puts  in  issue,  as 
well  its  continuance  as  a  deed,  as 
its  execution.  Jli. 

12.  A  defendant  may  plead  specially 
uiiy  matter  which  he  might  give  in 
ex  idence  under  the  plea  of  general 
noa  ti/  factual-,  but  if  he  chooses 


634 


INDEX. 


to  flo  so,  being  new  matter,  he 
must  do  it  with  a  verification;  and 
holding  the  affirmative,  he  draws 
the  burthen  of  proof  upon  himself. 

Ib, 

13-  If  a  defendant  seeks  to  avoid  a 
bond  by  duress,  infancy,  usury, 
&c.  which  cannot  be  given  in  evi- 
dence under  the  general  issue, 
(the  bond  not  being  therefore  void, 
but  voidable,)  he  must  plead  such 
new  special  matter  with  a  verifica- 
tion; and  the  proof  lies  upon  him. 
In  every  such  case  the  issue  is  up- 
on the  matter  specially  alleged  in 
the  plea.  Ib. 

14.  The  defendant  may  give,  in  evi- 
dence, under  the  plea  of  general 
nonest  factum,  that  the  instrument 
of  writing  was  delivered  as  an  es- 
crow, on  a  condition  not  perform- 
ed; and  it  is  settled  he  m<<y   plead 
it  specially,  and  that  the  proper 
conclusion  to  that   plea  is  to  the 
country;  because  it  is  a  special  ne- 
gative to  the  affirmative  in  the  de- 
claration— the  allegation  in  the  de- 
claration that  it  is  the  writing  ob- 
ligatory of  the  defendant,  including 
the  allegation  of  the  delivery  of 'it 
as  a  deed;  and  it  is  this  conclusion 
to  the  country,  that  raises  the  ques- 
tion, whether  the   proof  is  on  the 
plaintiff  or  defendant.  Ib. 

15.  Where  the  delivery  of  a  deed  as 
an  escrow  is  pleaded,  the  issue  is 
upon    that  special    matter,   which 
being  alleged  and  relied  upon  by 
the  defendant   to  show  that  it   is 
not  his  deed,  the  proof  of  that  al- 
legation rests  upon    him;    and  if 
there  be  no  proof  on  the  part  of 
the  defendant,  the  possession  of  the 
instrument  by  the  plaintiff,  isprima 
facie  evidence  of  the  delivery  as  a 
deed,  and  is  sufficient  to  sustain  the 
issue  on  his  part,  Ib. 

16.  If  the  delivery  as  an   escrow  be 
proved  on  the  part  of  the  defendant, 
as  alleged  in  the  plea,  the  proof  of 
the  performance  of  the  condition 
lies   upon  the  plaintiff  where   the 
affirmative  is  with  him.  Ib. 

17.  And  where  the  defendant  plead- 
ed that   he   signed  the  supposed 
writing  obligatory  at  the  request  of 
the  principal   obligor,  and  as  his 
surety,  and  returned  it  to  him,  to 
be  by  him  submitted  to  the  obli- 
gees, (a  corporation,)  for  their  ap- 
probation and  acceptance;  and  if 
it  should  be  approved  and  accept- 
ed by  them,  that  then  it  was  to  be 


considered  and  delivered  as  the 
act  and  deed  of  the  defendant;  and 
that  it  never  was  approved  by  the 
obligees  by  any  act  in  their  corpo- 
rate capacity,  and  so  it  was  not  his 
deed— //e/rf,  that  in  the  absonce  of 
all  evidence  on  the  part  of  the  de- 
fendant, the  possession  and  pro- 
duction of  the  instrument  of  writ- 
ing by  the  obligees  would  be  suf- 
ficient prima  facie  evidence  of  the 
delivery  anc'  acceptance,  to  entitle 
them  to  a  verdict  on  the  issue  join- 
ed on  such  a  plea.  Ib* 

18.  The  day  laid  .in  pleadings  is  fre- 
quently not  material — as  in  tres- 

.  pass,  where  the  injury  charged 
may  be  proved  to  have  been  com- 
mitted on  a  day  before  or  after  the 
time  stated  in  the  df  claration;  pro- 
vided it  appears  to  iiave  been  be- 
fore the  action  was  brought.  Ib. 

19.  In  assigning  the  breaches  of  the 
condition  of  a  bond,  which  was  tak- 
en  and    intended  as  a  security  for 
a  limited  period,  the  time  of  the 
commission  of  the  breach,  is  so  fir 
material  that  it  must  be  laid  10  be 
within  such  period;  and  an  allega- 
tion of  a  breach  beyond  that  peri- 
od, renders  the  whole  assignment 
defective,  and  bad  on  demurrer — 
as   it   then   appears  on  the  record 
that  the  defendant  is   charged  be- 
yond his  legal  responsibility.       Ib. 

20.  It  is  an  established  rule  in  plead- 
ing, that  upon  the  argument  of  a 
demurrer,  the  court  will,  notwith- 
standing the  defect  of  the  pleading 
demurred    to,    give   judgment   a- 
gainst  the  .  party  whose   pleading 
was  first  defective  in  substance — as 
if  a  plea  be  bad,   the  defendant 
may  avail  himself  of  any  substan- 
tial defect  in  the  declaration,  or  if 
the  replication  be  bad,  the  plaintiff 
may   avail   himself  of  any   defect 
in  the  plea.      Murdoch  v  Winter's 
Mm'r.  471 

21.  So  where  in  an  action  on  a  pro- 
missory note  payable  four  months 
after  date,  the  defendant  pleaded 
non  assumpsit  infra  tren  atinos,  to 
which  the  plaintiff  replied,  that  he 
at  the  time  of  making  the  promise, 
was  beyond  seas,  &c.  and  the  de- 
fendant demurred — Judgment  was 
rendered  for  the  plaintiff,  as  that 
mode  of  pleading  the  act  of  limi- 
tations   in    this  case  is  defective. 
]\ fur dock  v  Winter's  Jldm'r.       471 

See  Declaration 
— —  Procedendo  1. 


INDEX. 


535 


POLICY  OF  THE  LAW. 

See  Administration  1, 

POSSESSION. 
Set  Gift  1. 

PRACTICE. 

1.  Where  a   record    had   not   been 
transmitted  to  the  appellate  court 
under  a  writ  of  error,  that  court  will 
lay  a  rule  on  the  plaintiff  in  error, 
and  clerk  of  the  court  to  which  the 
writ  was  directed,  to  show  cause, 
&c.     On  the  record   being  filed, 
the  court  will,  if  it  be  the  regular 
term  for  judgment  in  case  the  re- 
cord  had    bt-en   duly   transmitted, 
and  no  counsel  appearing  for  the 
plaintiff*  in  error,  dismiss  the  writ 
of  error.     Bourne  v  Mackall,      86 

2.  A  plea  of  special  tion  est  facfum 
.  is  a  general  issue  plea,  and  like 

other  general  issue  pleas  need  not 
be  pleaded  before  the  rule  day,  but 
may  be  received  when  the  cause  is 
called  up  for  trial.  Union  Bank  of 
Zlaryland  v  Ridgeh;,  324 

3.  Whatever  apparent  inconsistency 
there  imy  be  between  the  pleqs  of 
general  performance    and  non  est 
fuctum,  it  is  the  settled  practice  un- 
der the  statute  of  4  dim,  ch.  16,  to 
receive   them;  for  defendants  are 
not  confined  to  pleas  strictly  con- 
sistent, lb. 

4.  The  only  pleas  now  disallowed,  on 
the  s.ame  ground  of  inconsistency, 
are  the  general  issue,  and  tender; 
and  the  reason  is,  that  one  goes  to 
deny  the  existence  of  any,  while 
the  other  admits  some  cause  of  ac- 
tion, lb. 

5.  When  an  amendment  of  the  plead- 
ings is  made  at  the  trial  under  the 
act  of  1809,  ch.  15.3,  s.  1,  time  is  to 
be  given  during  the  term,  to  the 
adverse  party  to  prepare  to   sup- 
port his  case;  yet  the  cause  is  not, 
therefore,  to  be  continued,  unless 
the  court  shall  be  satisfied  that  a 
continuance  is  necessary.  lb. 

See  Court  of  Appeals  3,  4. 
——  Court  of  Chancery  ]8. 

PREFERENCE. 
See  Joint  and  Separate  Creditors. 

PRESUMPTION. 

See  Attachment  2. 

PRIMA  FACIE  EVIDENCE. 

Set  Evidence  2. 
— —  Judgment  2. 


PRINCIPAL  &  AGENT. 

1.  The  owners  of  merchandize,  or 
other  property,  may  sue  in  their 
own  names  on  contracts  of  sale 
made  by  their  agc-nts,  to  whom  ex- 
press promises  to  pay  have  been 
made,  and  with  whom  the  vendees 
dealt  as  sole  owners  of  the  pro- 
perty, having  no  knowledge  of 
their  principal.  Higdwi,  et  ux.  v 
Thomas,  153 

PRINCIPAL  &  SURETY. 

See  Corporation.    . 

PRIORITY. 

Sec  Joint  and  Separate  Creditors. 

PROCKDENDO. 

1.  Where  the  pleadings  on  the  part' 
of  the  plaintiff  were  defective,  but 
the  evidence  stated  in  the  bill  of 
exceptions  showed  the  plaintiff' had 
some  claim,  and  the  verdict  and 
judgment  were  for  him,  the  appel- 
late coilrt,  on  reversing  the  judg- 
ment, awarded  a  procedtndo.  J.  £•? 
P.  Turner  v  Jenkins,  et  al.  161 

PROFERT. 

1.  An  omission  to  make  profcrt  of 
letters  of  odmiiiistration,.caunot  be 
taken  advantage  of  after  verdict. 
See  DKCLAHATION-  1,  and  Vander- 
smith  c  tVt&nmevn'j  Mm'r.  '  4, 

PROMISE. 

See  Assumpsit  7,  8,. 9. 
Limitation  of  Actions. 

PROMISSORY  NOTE. 

1.  W  drew  a  promissory  note,  which 
did  not  bear  date  at  any  particular 
place,  but  was  made  negotiable  at 
the  bank  of  the  plaintiffs;  it  was 
in  favour  of  C  R  &.  Son,  or  order, 
and  by  C  R,  the  defendant,  in  then1 
names,  specially  endorsed  to  the 
plaintiffs,  whose  bank  was  at 
.George-Town,\n  the  District  of  Co- 
lumbia. The  note  not  being  paid 
at  maturity,  it  was  on  the  day  after 
tlte  third  day  of  grace,  presented 
for  payment  to  an  agent  of  W  at 
the  said  bank,  appointed  for  the 
purpose  of  attending  to  the  pay- 
ment or  renewal  of  VV's  notes  held 
by  ihe  plaintiffs,  which  being  re- 
fused, notice  of  its  dishonour  was 
put  into  the  post  office  at  George- 
Tuwn,  directed  to  C  R  (the  defen- 
dant,) at  Baltimore,  in  the  state  of 
Maryland,  where  he  resided,.  W- 


536 


INDEX. 


when  (lie  note  became  clue,  resided 
in  Prince-George's  county,  in  Mnnj- 
Inrtd.  It  appeared  that  it  was  the 
custom  of  all  the  hanks  and  mer- 
chants in  the  District  of  Columbia 
to  demand  payment  of  notes  on  the 
fourth  day  after  they  became  due — 
Held,  that  the  defendant  was  liable 
on  his  endorsement  to  the  plain- 
tiffs. Jiabffrg  v  Bank  of  Columbia, 
231 

2.  In  an  action  on  a  promissory  note, 
drawn  in  favour  of  C  &  11,  and  en- 
dorsed by  H  in  their  names,  to  1', 
the  writ  was  against  It  assurvtving 
partner  of  C,   but  the  declaration 
was  not.     It  was  proved  that  C  di- 
ed before  the  making  of  the  note. 
Judgment  was  rendered  against  R, 
without   stating  as   surviving  part- 
ner.      On   appeal — Judgment    af- 
firmed. Jb. 

3.  A  drew  a  promissory  note  dated  at 
George-Town,  in  the  District  of  Co- 
lumbia, and  there  payable  60  days 
after  date,  in  favour  of  15,  or  order, 
who  endorsed  it   to  the  plaintiffs, 
by  whom  it  was  discounted.  .On  the 
first  day,  after  the  third  day  of  grace, 
payment    was    demanded   of  this 
note  of  A,  who  not  paying  it,  notice 
of  its  dishonour  was  sent  by  post  to 
Baltimore,  in  Maryland,  to  H,  who 
did  not  then,  nor  when  he  endorsed 
the  note,  reside  at  George-Town,  in 
the  District  of  Columbia.     It  ap- 
peared that  it  had  been  the  univer- 
sal practice  of  banks  and  merchanN 
in  the  District  of  Columbia,  for  20 
years,  to  present  negotiable  notes 
due    and    unpaid,    to  the  drawer 
for  the  payment,  on  the  fourth  dav 
of  grace;  that  such  usage  was  of 
public  notoriety,  and  that  the  de- 
mand and   notice;  ahovementioned, 
were  in  conformity  thereto — Held, 
that  B's  contract  was  to  be  consi- 
dered as  made  in  reference  to  this 
usage;  that  both  he  and  the  drawer 
looked  to  the  place  where  the  mo- 
ney was  to  be  paid,  and  the  con- 
tract performed,  and  must  be  pre- 
sumed to  have  known  'his  usage, 
and  he  was.  therefore,  liu'J^as  en- 
dorser.     The.  Bank  of  Columbia  v 
Fitzhugh,  239 

4.  A  promissory  note  for  $1*45,  pay. 
able  90  clays  after  date,  made  by  H 
at  the  request  of  E,  and  for  his  ac- 
commodation, and  by   E  taken  to 
G,   who  endorsed  it  with  E,  and 
then  delivered  by  G  to  M,  who  ne- 
gotiated it  with  II  for  the  sum  of 


$1648,  which  was  paid  to  E,-  Is  void 

for  usury.      Suucrwein  v  Brunncf, 

477 

5.  Where  a  note  commences  in  usu- 
ry? or  in  other  words,  where  a  note 
is  tainted  with  usury  at  its  birth, 
when  it  first  becomes  legally  effi- 
cient and  operative  so  as  to  give  to 
the  holder  a  right  of  action   upon 
it,  no  subsequent  holder,  for  a  va- 
luable   consideration    without  no- 
tice of  such  usury,  ca:i  maintain  a 
suit  upon  it — such   note  being,  de- 
clared by  statute  null  and  void,  Jb. 

6.  .A  note  endorsed  for  the  accom- 
modation of  the  maker,  and  passed 
by  him  as  a  security  for  a  usurious 
loan,  is  a  usurious  contract   in    its 
inception;    as  the  lender  is  in  fact 
to  be  considered  the  first  holder  of 
the  note.  Ib. 

7.  The  terms  "to  negotiate  a  note," 
import  the  passing   it  for  money; 
and   to    pass   a    note    for   money, 
means  to  transfer  such  note  to  ano- 
ther proprietor.  Jb. 

See  Bill  of  Exchange. 

Cause  of  Action  1. 

—  Usage. 

PURCHASE  &  PURCHASE!!. 
Sec  Sale  and  Purchaser  1. 

PURCHASE  .MONEY. 
See  Conveyance  1. 

Evidence  2. 


Q 

QUESTION  OF  FACT. 
Sec  Law  and  Facts. 

n 


RECEIPT. 

1.  A  receipt  of  the  purchase  money, 
in  a  deed  of  conveyance  of  land,  is 
only  prinia  facie  evidence  of  its  pay- 
ment. Higdon,  el  ux.  v  Thomas,  139 

RECITAL. 

See  Declaration  2. 

Statute  of  Fra'uds  4. 

RENT. 

Sec  Eviction  1. 

—      Landlord  Sc  Tenant. 

— —  Rents  &  Profits. 

RENTS  &  PROFITS. 
See  Court  of  Chancery  16,  IT,  IS, 


INDEX. 


REPLEVIN. 

1.  A  surety  in  a  replevin  bond  is  not 
a  competent  witness  for  the  plain- 
tifF  in  replevin.  Sanderson's Ex'rs. 
y  Mark*,  252 

'2.  The  declaration  in  replevin  should 
not  include  any  property  not  taken 
under  the  writ  of  replevin.  Ib. 
"3.  One  joint  owner  of  a  chattel  can- 
not maintain  replevin  against  ano- 
ther. M'Elderry,  ct  al.  v  Flunna- 
gan,  308 

IMPUTATION. 

1.  A  tract  of  land  may  acquire,  by 
reputation,  a  name  different  from 
that  which  it  bears  in  the  patent, 
and  may  pass  by  such  acquired 
name.  Wall  v  Forbes,  441 


s 


SALE  &;  PURCHASE. 

1.  A  sale  by  one  trustee  to  his  co- 
trustee,  is  illegal.  S.  &  T-  Ring- 
gold  v  M.  Ringgold,  el  al.  11 

SCIUE  FACIAS. 
See  Bail. 
— —  Pleading. 

SECONDARY  EVIDENCE. 

See  Evidence  22. 

SECURITY  FOR  COSTS. 
1.  The  court  of  appeals  will  not  grant 
a  rule  on  an  appellant  who  has  re 
moved  out  of  the  state  since  the 
appeal,  to  give  security  for  the  costs 
of  suit.  Berry  v  Griffith,  440 

SEPARATE  CREDITORS. 

See  Joint  &  Separate  Creditors. 

SEPARATE  DEBTS. 

See  Joint  8c  Separate  Creditors. 

SEPARATE  ESTATE. 

See  Joint  &  Separate  Creditors. 

SET  OFF. 

See  Assumpsit  2. 

SHERIFF. 
See  Bill  of  Sale  1 . 
Fieri  Facias  1,  4,  5. 

SIGNATURE. 

Sec  Statute  of  Frauds  1,  2,  3, 4. 

SLAVES. 

1.  Where  a  vendor  was  exonerated 
e  delivery  of  a  slave,  then 

YOL,  I:  S8 


out  of  his  possession,  whom  lie  had 
sold,  and  been  paid  for,  and  af- 
terwards persuaded  or  enticed  to 
abscond,  so  that  the  purchaser 
never  got  possession  of  him,  no 
action  can  be  maintained  upon  the 
contract  of  sale  for  a  nondelivery, 
or  to  recover  back  the  purchase 
money,  as  money  had  and  received 
by  him  to  the  use  of  the  vendee. 
Either  action  could  have  been 
maintained,  if  it  had  been  the  ven- 
dor's duty  to  deliver  live  slave,  and 
he  had  refused.  The  proper  reme- 
dy here  is  a  special  action  on  the 
case  for  persuading  or  enticing  the 
slave  to  abscond.  Murpheg  v  Bar- 
ron,  258 

SPECIAL  AUTHORITY. 

Sec  Commission  &,  Commissioners  I. 

SPECIAL  BAIL. 
See  Bail. 

STATUTE  OF  FRAUDS. 

1.  A  liberal  construction  is  to  be  giv- 
en to  the  Statute  of  Frauds,  29  Car. 
II,  ch.  3.     In  relation  to  the  fourth 
section  thereof,  it  is  settled,  that  if 
the  name  of  a  party  appears  in  the 
memorandum  of  a  contract,  and  is 
applicable  to  the  whole  substance 
of  the  writing,  and  is  put  there  by 
him  or  his  authority,  it  is  immate- 
rial in  what  part  of  the  instrument 
the  name  appears,  whether  at  the 
top",  in  the  middle,  or  at  the   bot- 
tom .     Forms  are  not  regarded,  and 
the  statute  is  satisfied,  if  the  terms; 
of  the  contract  are  in  writing,  and 
the  names  of  the  contracting  parties 
appear.     Higdon,  et  ux.  v  Thomas, 

139 

2.  A  technical  authentication  by  sig- 
nature is  not  necessary.  Ib. 

3.  The  phraseology  of  l\\e  fourth  and 
fifth  sections  of  that  statute,  as  re- 
spects signing,  is  equally  imoera- 
tive,  and  substantially  the  same.  Ib. 

4.  A  bond,  which  recited  the  names 
of  the  parties  to,  and  the  terms  of 
a  contract  for  the  sale  of  land,  con- 
taining a  condition  to  secure  a  per- 
formance of  the  contract,  prepared 
and  written  by  the  vendee,  who 
was  also  the  obligee  in  the  bond, 
executed  by  an  agent  of  the  ven- 
dor, and  delivered  by  him  to  the 
vendee,  is  a  sufficient  signing  with- 
in the  fourth  section,  of  the  Statute 
of  Frauds.  lb> 

Se&  Evidence  6. 


538 


INDEX. 


SURETY. 

3.  A  surety  in  a  replevin  bond  is  not 
a  competent  witness  f..r  the  plain- 
tiff in  replevin.  Sanderson's  Ex'r.i. 
v  Marks,  252 

See  Corporation. 


TENANT. 

See  Landlord  &.  Tenant. 

TRESPASS. 

1.  The  day  laid  in  pleadings  is  fre- 
quently not  material — as  in  tres- 
pass, where  the  injury  charged 
may  be  proved  to  have  been  com- 
mitted on  a  day  before  or  after  the 
time  stated  in  the  declaration;  pro- 
vided it  appears  to  have  been  be- 
fore the  action  was  brought  Union 
Bank  of  Maryland  v  Midgely,  324 

TRUST  &  TRUSTEE. 

1.  Trustees  empowered  by  deed  to 
sell  real  estate,  and  with  the  pro- 
ceeds pay  debts  and  make   invest- 
ments in  stock,  are  not  authorised 
to  exchange  the  trust  property  for 
other  real  property.     By  making 
such  exchange,  though  with   the 
best  intentions,  they  are  responsi- 
ble for  the  full  value  of  the  pro- 
perty parted  with      &  £•?  T.  Ring- 
gold  v  M.  Ringgold,  et  al.  1 1 

2.  The  policy  of  the  law  requires  that 
the  relation  of  trustee  and   cestui 
gue  trust,  should  be  guarded  with 
vigilance,  and  contracts  between 
them  scrutinized,  that  no  injustice 
should  be   done  to  the  cestui  que 
trust.  Jb. 

8-  Where  a  cestui  que  trust  has  un- 
dertaken to  indemnify  his  trustee, 
a  court  of  equity  ought  to  be  satis- 
fied  that  he  was  free  to  act  as  a 
rational,  intelligent  man,  not  go- 
verned by  considerations  growing 
out  of  a  dependent  condition; 
otherwise  the  indemnities  will  be 

.  disregarded.  lb. 

4.  Where  a  trustee  disposes  of  the 
title  to  lands,  in  violation  of  his 
duty,  and  the  court  has  no  other 
possible  means  of  reinstating  the 
cestui  que  trust,  the  trustee  is  re- 
sponsible for  the  utmost  value  of 
the  property  disposed  of;  yet  when 
the  value  of  the  property  can  be 
clearly  ascertained,  that  must  be 
the  measure  of  the  indemnity.    lb. 

5.  In  the  case  of  a  mixture  or  confu- 
sion of  property,  from  necessity 


the  full  value  is  given  to  the  inno- 
cent party.  lb. 

6.  A  sale  by  one  trustee  to  his  co^ 
trustee,  is  illegal.  lb. 

7.  Where  it  was  the  duty  of  trustees 
to  collect  purchase  money,  and  in- 
vest it,   some   of  the   trust  estate 
being  sold  to  T,  a  co-trustee,  and 
S,  another  trustee,  made  no  effort, 
at  any  period  during  the  existence 
of  the  trust,  to  oblige  his  co-trus- 
tee to  pay  for  his  purchase,  but 
suffered  ii  to  lie  in  the  hands  of  T, 
when  he,  S,  knew  that  the  trust 
vas  abused,   in   consequence  of  a 
failure  on  T's  part  to  apply  the  a- 
mount  of  the  purchase  money  ac- 
cording to  the  trust — they  are  both 
responsible.  lb. 

8.  Where  S  and  T  sold  personal  pro- 
perty, with  the  assent  of  its  owner, 
took  bonds  in  their  own  names  from 
the  purchasers,  collected  a  part  of 
the    purchase    money,    proffered 
themselves  ready  to  account   for 
such  sales,  made  a  return  thereof  as 
trustees,  a  court  of  equity  will  in- 
fer some  conventional  arrangement 
between  the  parties  in  the  nature 
of  a  trust,  which  may  be  unforced 
in  that  court  lb. 

9.  Where  one  trustee   purchases    a 
p:\rt  of  the  trust  estate,  for  which 
he  was  to  pay  at  a  stipulated  period, 
and  his  co-trustee,  under  the  cir- 
cumstances, being  jointly  respon- 
sible  with  him  for  the  principal, 
there  is,  of  course,  a  joint  respon- 
sibility for  the  interest.  lb. 

10-  Co-trustees  are  bound  to  know 
the  receipts,  and  watch  over  the 
conduct,  of  each  other.  Where 
one  trustee  received  trust  funds  ap- 
plicable *o  outstanding  debts  which 
lie  did  not  pay;  nor  did  he  keep 
such  funds  separated  from  the  mass 
of  his  estate,  a  co-trustee,  who 
from  his  situation  must  know  of 
such  receipts,  yet  makes  no  effort 
to  obtain  them,  or  have  them  ap- 
plied, is  jointly  chargeable  for  in- 
terest with  his  associate  lb. 

11.  Where    trustee?,     transcending 
their  powers,  make  investments  in 
unproductive  property,   they  are 
chargeable  with  interest.  lb. 

12.  Where  property  is  conveyed  to 
trustees,  to  be  sold  for  the  payment 
of  debts,  and  the  surplus  to  be  in- 
vested  in  stocks  to    produce    in- 
terest, which  interest  is  specifically 
appropriated   by  the  terms  of  the 
conveyance,  and  the  proceeds  of 


INDEX. 


539 


such  estate  being  in  hand,  it  was 
the  imperative  duty  of  the  trustees 
to  have  invested,  unless  a  portion, 
or  the  whole,  had  been  demanded 
by  acknowledged  debts?  but  where 
hopes  were  entertained  by  the  trus- 
tees that  a  claim,  then  depending 
in  chancery,  would  be  perpetually 
enjoined,  it  having  been  litigated 
for  several  years,  and  no  reasona- 
ble expectation  of  a  speedy  close, 
they  were  not  justified  in  laying  by 
•the  money,  and  waiting  the  event 
of  a  protracted  chancery  suit.  In 
such  a  case,  the  trustees  were  gross- 
ly negligent,  and  must  pay  inte- 
rest .  Ib. 

33.  Compound  interest  will  be  al- 
iowed  where  a  trustee  is  directed 
to  invest  funds,  and  to  reinvest  the 
dividends;  or  where  the  trust  di- 
rects an  accumulation,  and  the  trus- 
tee haa  used  the  funds.  Yet  the 
ground  of  this  allowance  is  the 
actual  or  presumed  gain  of  the 
trustee  by  the  use  of  the  funds; 
and  where  the  circumstances  for- 
bid the  presumption  of  gain  by  the 
trustee,  it  will  not  be  allowed.  Ib. 

14.  To  trustees  who  have  invested, 
or  made  efforts  to  invest,  trust 
funds,  a  rest  of  six  months  on  their 
receipts,  without  interest,  will  be 
allowed  as- a  reasonable  time  with- 
in which  to  invest;  but  where  they 
manifested  no  disposition  to  make 
such  application  of  their  receipts, 
as  the  trust  contemplated,  no  such 
rest  is  allowed.  Ib. 

35.  By  sin  equitable  construction  of, 
and  by  analogy  to  the  statutes  of 
this  state,  allowing  commissions  to 
executors,  guardians,  and  trustees, 
under  judicial  sales,  commissions 
may  be  allowed  to  conventional 
trustees,  though  there  was  no  a- 
greement  between  the  parties  to 
that  efiect.  Ib. 

16.  Whether  or  not  one  co-trustee 
can  be  a  witness  for  his  co-trustee 
in  an  action  against  both?     Quere. 

Ib. 

17.  An  executor  empowered  by  will 
to  sell  lands,  having  sold  them  in 
1814,  and  put  the  purchaser  in  pos- 
session, it  was  his  duty,  if  the  sale 
was  for  caslit   payment  being  re- 
fused, to  have  sued;  if  on  credit,  he 
ought,  within  a  reasonable  time,  to 
have  obtained  bond  and  security 
for  the  purchase  money;  and  at  all 
events  should  have  retained  pos- 
session of  the  lands  until  the  neces. 


sary  security  was  given.  Omitting 
to  sue  at  law  until  1819,  he  was 
prima  facie  guilty  of  gross  negli- 
gence, and  responsible,  as  a  trus- 
tee would  be,  for  the  proceeds  of 
the  lands  from  the  time  of  the  sale, 
deducting  his  reasonable  expenses? 
and  commission.  Hurtt  v  Fisher,  88 

18.  A  trustee,   with  power  to  sell, 
and  having  sold  lands,  being  in- 
formed that  a  deed  was  required 
by  the  purchaser,  to  whom  he  had 
sold  and  given  possession,  and  that 
the  purchase  money  would  be  paid 
when   the    deed     was    executed, 
doubting  his  right  to    execute   a 
deed,  yet  not  obtaining  a  decree, 
ratifying  his  sp.le  for  four  years,  is 
bound  to  show  the  circumstances 
beyond  his  control,   to  justisy  this 
delay  Ib. 

19.  A  trustee  is  responsible  for  money 
lost  by  his  gross  negligence.       Ib. 

See  Assumpsit  2. 


USAGE. 

1.  A  usage  of  universal   prevalence 
becomes  a  part  of  the  existing  law, 
and  is  to  b<-.  noticed  ex  officio  by  the 
courts  of  justice;  but  a  particular 
usage  has  a  circumscribed  and  limit- 
ed application,  and  must  be  sup- 
ported by  proof.    Where  it  is  well 
established,  it  is  obligatory  on  the 
objects  of  its  operation  as  the  gene- 
ral law.      The  Sank  of  Columbia  v 
Fitzhugh,  239 

2.  Usage  enters  into  contracts — be- 
comes a  part  of  them,  and  must  be 
regarded  in  their  interpretation.  Ib. 

3.  Special  usages  control  and  govern 
the  general  law  repugnant  to  them. 

Ib. 
See  Custom. 

USURY. 

See  Promissory  Note  4,  5,  6. 


VARIANCE. 

1.  By  the  statutes  of  21  Jac.  I,  ch.  13, 
5  Geo.  I,  ch.  13,  and  our  act  of  as- 
sembly of  1809,  ch.  153,  a  variance 
between  the  writ  and  declaration 
is  cured  after  verdict.  Giles,  Jidm'r. 
of  Bacon,  v  Perry  man,  164. 

VENDOR  &  VENDEE. 

See  Contract  7. 

Principal  &  Agent  1. 


540 


VERDICT, 

] .  After  verdict  in  an  action  of  as- 
sumpsit  by  an  administrator,  a  de- 
fective allegation  in  the  declara- 
tion of  the  promise  to  the  admini- 
strator, and  the  death  of  the  intes- 
tate, and  an  omission  to  make  pro- 
fert  of  the  letters  of  administration, 
cannot  be  taken  advantage  of; 
though  they  might  have  furnished 
good  causes  of  demurrer.  Van- 
dersmitkv  Washmcin'sJldm'r.  4 

See  Variance  1. 

w 

WARRANT  OF  RESURVEY. 

1.  In  an  action  of  covenant,  where 
the  plaintiff  sued  out  a  warrant  of 
resurvey,  and  plots  were  returned, 
to  establish  his  claim  he  cannot 
examine  a  witness  as  to  the  loca- 
tion of  the  lands  on  the  plots,  who 
was  neither  upon  nor  attended  the 
survey.  Wall  v  Forbes,  441 


A.lien. 


WIDOW. 


See  Feme  Covert. 
Husband  &.  Wife. 

WILL. 

See  Devise. 
—  Intestate  1. 

WITNESS. 

1.  Whether  or  not  one  co-trustee  can 
be  a  witness  for  his   co-trustee  in 
an  action  against  both?  Quere.  S.  & 
T.  Ringgold  v  M.  Ringgold,  et  ul. 

11 

2.  As  a  general  rule,  a  person  who 
has  neither  been  examinee'  upon, 
nor    attended  a   survey   of   lands 
made  under  a  wsrrant  of  resurvey 
issued  by  order  of  court,  is  not  a 
competent    witness   to    give    evi- 
dence at  the  trial  of  the  cause  in 
relation  to  the  locations  made  upou 
the  plots.      Wall  v  Forbes,         441 

See  Corporation  1,  2. 

Evidence  22,  .23,  24,  25. 

WRIT  OF  ERROR. 

See  Appeal. 


oe  TUB  PIKST  VOLTJJMF* 


001211829 


